Please refer to Docket ID NRC-2019-0062 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2019-0062.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number for the preliminary proposed rule text is ML20289A534.

Please include Docket ID NRC-2019-0062 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

On January 14, 2019, the President signed the Nuclear Energy Innovation and Modernization Act (NEIMA) into law (Pub. L. 115 439). NEIMA directs the NRC to develop the regulatory infrastructure to support the development and commercialization of advanced nuclear reactors. The current application and licensing requirements, developed for large light-water and non-power reactors as outlined in part 50 of title 10 of the Code of Federal Regulations (10 CFR), “Domestic Licensing of Production and Utilization Facilities,” and 10 CFR part 52, “Licenses, Certifications and Approvals for Nuclear Power Plants,” do not fully consider the variety of designs for advanced nuclear reactors and may require extensive use of the exemption process for regulations that include prescriptive requirements specific to light-water reactors. Through this rulemaking, the NRC is proposing to amend the regulations by creating an alternative regulatory framework for licensing advanced nuclear reactors.

The NRC is developing preliminary proposed rule language for the purpose of adding a new, alternative part to its regulations that will set out a risk-informed, technology-inclusive framework for the licensing and regulation of advanced nuclear reactors. This new approach would: (1) Continue to provide reasonable assurance of adequate protection of public health and safety and the common defense and security, (2) promote regulatory stability, predictability, and clarity, (3) reduce requests for exemptions from the current requirements in 10 CFR parts 50 and 52, (4) establish new requirements to address non-light-water reactor technologies, (5) recognize technological advancements in reactor design, and (6) credit the response of advanced nuclear reactors to postulated accidents, including slower transient response times and relatively small and slow release of fission products. The proposed rule would add 10 CFR part 53, “Licensing and Regulation of Advanced Nuclear Reactors.”

The NRC will periodically make available portions of preliminary proposed rule language on the federal rulemaking website at http://www.regulations.gov under Docket ID NRC-2019-0062. This preliminary proposed rule language is draft and may be incomplete in one or more respects; however, the NRC welcomes diverse stakeholder feedback to inform the proposed rulemaking activity.

Various sections of the 10 CFR part 53 preliminary proposed rule language will be released to stakeholders during the development of the proposed rule. The public will be provided with opportunities to comment on the preliminary proposed rule language before or during public meetings and on a rolling basis throughout the 12-month public comment period. The NRC plans to hold public meetings every 4 to 6 weeks over the next 12 months. The meetings will be noticed in the NRC's Public Meeting Notice System at least 10 days in advance of the scheduled meeting. Preliminary proposed rule language is being provided to increase transparency and to facilitate discussions with stakeholders on the licensing process for advanced nuclear reactors. The NRC will post new and revised updates to the preliminary proposed rule language periodically on the Federal rulemaking website at www.regulations.gov that may be of interest to stakeholders. The NRC will not issue a Federal Register notice each time preliminary proposed rule language is added to the docket. Please monitor the docket on www.regulations.gov and use the following information to sign up for docket alerts.

The NRC may post materials related to this rulemaking, including public comments received, on the Federal Rulemaking website at https://www.regulations.gov under Docket ID NRC-2019-0062. The Federal Rulemaking website allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2019-0062); (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

The Bureau is issuing this ANPR to solicit comments and information to assist the Bureau in developing regulations to implement section 1033 of the Dodd-Frank Act (section 1033), which provides for consumer access to financial records. The Bureau is issuing this ANPR to solicit stakeholder input on ways that the Bureau might effectively and efficiently implement the financial record access rights described in Section 1033, recognizing that various market participants have helped authorized data access become more secure, effective, and subject to consumer control. While the Bureau expects these trends to continue, there are indications that some emerging market practices may not reflect the access rights described in section 1033. The Bureau is also seeking information regarding the possible scope of data that might be made subject to protected access, as well as information that might bear on other terms of access, such as those relating to security, privacy, effective consumer control over access and accessed data, and accountability for data errors and unauthorized access. The Bureau is also interested in comment on whether and how issues of potential regulatory uncertainty with respect to section 1033 and its interaction with other statutes within the Bureau's jurisdiction, such as the Fair Credit Reporting Act, may be impacting this market to the potential detriment of consumers, and seeks information that may help resolve such uncertainty. The Bureau invites comment on all aspects of this ANPR from all interested parties, including consumers, consumer advocacy groups, industry members and trade groups, and other members of the public.

This ANPR proceeds in five sections. Section I summarizes the Dodd-Frank Act's description of consumer rights to access financial records. Section II provides defined terms for the ANPR. Section III provides an overview of data access, with a particular focus on the authorized data access ecosystem, including the players involved, modes of access, competitive incentives and standard-setting, and consumer impacts. Section IV summarizes the Bureau's actions to date relating to consumer-authorized data access. Section V includes a series of questions about whether and how the Bureau might most effectively provide regulatory guidance in this area.

As discussed in greater detail in section IV, the Bureau has taken several steps with respect to section 1033, including extensive engagement with stakeholders from a range of perspectives. These include a request for information issued in 2016, a Bureau statement of principles in 2017, and most recently, a February 2020 symposium. The valuable information and comments the Bureau has received through its stakeholder engagement efforts informs section III's discussion of the complex issues raised with respect to effective implementation of section 1033 and the section V questions intended to assist Bureau decisions concerning potential rulemaking.

Section 1033 is comprised of five subsections. Section 1033(a) provides that, subject to rules prescribed by the Bureau, a covered person shall make available to a consumer, upon request, information in the control or possession of the covered person concerning the consumer financial product or service that the consumer obtained from such covered person, including information relating to any transaction, series of transactions, or to the account including costs, charges and usage data. 1 The information is to be made available in an electronic form usable by consumers. Section 1033(b) then outlines certain exceptions from these general access rights. For example, a covered person may not be required to make available to the consumer “confidential commercial information, including an algorithm used to derive credit scores or other risk scores or predictors” and “information that the covered person cannot retrieve in the ordinary course of its business with respect to that information.”  2

Section 1033(c) establishes that section 1033 does not “impose any duty on a covered person to maintain or keep any information about a consumer.”  3 Section 1033(d) states that “[t]he Bureau, by rule, shall prescribe standards to promote the development and use of standardized formats for information, including through the use of machine readable files, to be made available to consumers under this section.”  4 Finally, section 1033(e) requires that the Bureau consult with the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation, and the Federal Trade Commission to ensure, to the extent appropriate, that any rule pursuant to section 1033 imposes substantively similar requirements on covered persons, takes into account conditions under which covered persons do business both in the United States and in other countries, and does not require or promote the use of any particular technology in order to develop systems for compliance. 5

This ANPR relies upon several terms defined in the Dodd-Frank Act. For convenience, this ANPR also defines several additional terms. The non-statutorily defined terms in this ANPR are for purposes of this ANPR only and should not be understood to indicate any legal interpretation, legal guidance, or policy judgment by the Bureau. When specific questions in section V below depart from these definitions, that is specifically noted.

• “Authorized data” means data initially sourced from a data holder as a result of authorized data access.

• “Authorized data access” (or “consumer-authorized data access”) means third-party access to consumer financial data pursuant to the relevant consumer's authorization.

• “Authorized entities” are entities or persons with authorized data access to particular consumer financial data.

• “Consumer data access” means authorized data access and direct access.

• “Consumer financial data” (or “consumer data”) means “information in the control or possession of [a] covered person concerning a consumer financial product or service that the consumer obtained from such covered person, including information relating to any transaction, series of transactions, or to the account, including costs, charges and usage data.”  6

• “Data aggregator” (or “aggregator”) means an entity that supports data users and/or data holders in enabling authorized data access.

• “Data holder” means a covered person with control or possession of consumer financial data.

• “Data user” means a third party that uses consumer-authorized data access to provide either (1) products or services to the authorizing consumer or (2) services used by entities that provide products or services to the authorizing consumer.

• “Direct access” means direct access by the individual consumer to consumer data rather than by an authorized entity.

Many providers of consumer financial products and services accumulate information concerning the consumers who use their products and services, the accounts that consumers maintain with them, and other information relating to consumers' use of such products and services. Providers of demand deposit accounts, for example, will accumulate information about the transactions made with a given account and about charges assessed to the account. In many cases, there are well-established statutory and regulatory frameworks that impose requirements on providers of consumer financial products and services to disclose certain information to their customers about their accounts. Disclosure requirements may include, for example, periodic statements with account information on transactions and fees or disclosures about the collection, sharing, use, and protection of consumers' non-public personal information. 7

In addition, consumers wishing to access consumer data  8 can often do so by interacting directly with their consumer financial service providers through providers' online servicing portals or mobile applications. Many providers of consumer financial products and services, from traditional providers like banks and credit unions to newer entrants such as online lenders, make available to consumers extensive electronic data about their use of the institution's products and services. Direct access of this kind is how many consumers now manage their main consumer financial accounts, like their checking accounts, credit card accounts, or mortgage loan accounts. 9

For some time, a range of companies—including traditional financial institutions and non-bank financial technology, or “fintech,” firms—have been accessing consumer data with consumers' authorization and providing services to consumers using data from the consumers' various financial accounts. In recent years, the number and usage of products and services that utilize or rely upon consumers' ability to authorize third-party access to consumer data have grown substantially and rapidly. 10 This growth in authorized data access has been accompanied by expansion in the number of distinct applications or “use cases” for authorized data, including, but not limited to, personal financial management; financial advisory services; assistance in shopping for and selecting new consumer financial products and services; making and receiving payments; assisting consumers with improving savings outcomes; identity verification and account ownership validation; credit profile improvement; and underwriting.

This type of consumer-authorized data access and use holds the promise of improved and innovative consumer financial products and services, enhanced control for consumers over their financial lives, and increased competition in the provision of financial services to consumers. 11 Further, stakeholders assert that the increasing ability of consumers to authorize third-party access to consumer data can improve the quality and the consumer experience of consumer financial products and services, expand access and reduce costs related to using those products and services, and further consumer-friendly innovation and competition in consumer financial markets. 12 At the same time, stakeholders have also noted that consumers still face certain potential risks if they authorize access to consumer data, including some risks relating to the methods by which they authorize such access and by which the records are collected and used by authorized entities. 13

In authorizing a third party to access consumer data, consumers engage in a broad and complex ecosystem that enables such access. In addition to consumers themselves, the main participants in that system are data holders, data users, and data aggregators. A given participant, however, may play more than one—or even all—of these roles.

Data holders include providers of consumer financial products and services that, in the ordinary course of their business, collect, generate, or otherwise possess and retain information about consumers' use of their products and services. In theory, this category could include almost every type of provider of consumer financial products and services. In practice, however, activity in the authorized data access ecosystem to date has focused on banks, credit unions, and other providers of core transaction accounts (especially demand deposit accounts) in their role as data holders. 14 This focus, however, has not been exclusive.

Data users are providers of products and services who use authorized data access to inform or enable the delivery of their products and services. Non-bank fintech companies who offer consumer financial products and services are prominent data users; however, other companies, including banks, also can and do act as data users. As discussed below, data users may use authorized data to enable or seek to improve a wide and growing array of consumer financial products and services, including both those competing in longstanding consumer financial markets as well as innovative products and services in new markets.

Although data users may access consumer data from data holders without the use of any intermediaries, the Bureau understands that currently most authorized data access is effected via data aggregators. These entities access and transmit consumer financial data to data users pursuant to consumer authorization. In some cases, they may also retain consumer data. Data aggregators are often “fourth parties” that support data users in procuring consumer authorization to access data, and in accessing such data, often support data holders in facilitating authorized third-party access to their customers' data. To date, the market for data aggregation services has primarily focused on aggregators offering services to data user clients;  15 however, as discussed in more detail below, this dynamic has been shifting in recent years towards data aggregators performing services for providers in the providers' capacity as data holders, as well.

Aggregators may play a larger role in the U.S. data access system than in certain other countries because of the relatively large number of bank and credit union data holders in the U.S. and the lack of controlling data standards. Given this multitude of consumer data sources, data users have turned to specialized intermediaries to enable access. In this way, such data users do not have to negotiate access with a large number of data holders with a wide range of data accessibility practices (or in the case of screen scraping, develop and maintain a distinct technical solution for every potential data holder), but instead can contract with one or a handful of aggregators that have already developed and maintain access with respect to many data holders. 16

These three categories—data holder, data user, and data aggregator—are not mutually exclusive in theory or in practice. First, to the extent they collect, generate, or otherwise possess and retain information about their customers in the ordinary course of their business, both data users and data aggregators also may be data holders. For example, a fintech that offers, often on behalf of a depository institution partner, demand deposit accounts to consumers—such fintechs are frequently referred to as “neobanks”—may act as a data user if it obtains, pursuant to consumer authorization, consumer data about a consumer's accounts at other financial institutions to facilitate consumer-directed movement of funds between accounts. But that same neobank may also act as a data holder when one of its consumers authorizes a different financial institution to access consumer financial data at the neobank in connection with applying for a personal loan from that different financial institution. Second, data users may also function as data aggregators, whether they are providing aggregation services purely “in-house” in connection with their own consumer data-supported products and services or if they instead contract with other data users to provide aggregation services.

Authorized data access holds the potential to intensify competition and innovation in many, perhaps even most, consumer financial markets. Such intensification can take one of three main forms.

First, authorized data access can enable improvements to existing products. For example, a mortgage lender can improve its products by using authorized data access to verify digitally an applicant's account assets. The consumer is spared the burden of assembling these data and may be able to proceed faster as a result. Additionally, the lender may have greater assurance of data accuracy and reliability.

Second, authorized data access can foster competition for existing products, thereby broadening access, lowering prices, or both. For example, lenders may be able to use consumer data—like deposit account transaction history—to underwrite consumers who might otherwise face more costly credit terms, assuming that they can obtain credit at all. Or a lender might use near real-time account data to provide a consumer with short-term credit options that compete with checking account overdraft functionality and pricing.

Finally, authorized data access can be used to offer new types of products and services. For example, a company may offer an automated personalized financial advice service that consolidates consumer data from across a consumer's various transaction accounts at multiple providers, a service which had only imperfect analogs prior to its development. Of course, many products and services that rely on authorized data access may encompass several or all of the three competitive dynamics.

One notable aspect of the competition fostered by consumer-authorized data access is that in many cases data users may compete for customers with the data holders from which they have obtained data. Sometimes this competition might be direct, as in the example above of a just-in-time lender competing with a bank offering overdraft coverage. Sometimes it might be less direct, as may occur if a bank's customers use a personal financial management application that recommends that some of those consumers shift their business to a competing provider. 17 These competitive dynamics mean that data holders may have an incentive to restrict access by certain data users or to seek greater clarity about the purposes to which particular accessing parties may put accessed data. By the same token, data users may have incentives not to be forthcoming about such purposes.

Of course, these competitive incentives may be outweighed by countervailing incentives. Data holders may have an incentive to provide consumers with the means to enable more secure and controlled authorized data access. Thus, data holders may face consumer demand to allow authorized data access. They also may find that working collaboratively with data users and data aggregators results in a form of authorized data access that is more secure or provides other benefits to data holders. 18 Similarly, data users and aggregators have incentives to develop secure and reliable means of authorized data access, which may necessitate collaboration with data holders. For example, they may find that screen scraping is technically unreliable or challenging to maintain, compared to modes of authentication and access that require collaboration with data holders.

These competitive dynamics appear to be reflected in evolving modes of authorized data access. To date, most consumer-authorized third parties have accessed consumer data through data holders' digital banking portal using digital banking credentials the consumer shared with third parties. Such access generally requires no formal agreement between data holder and data user or data aggregator. 19 More recently, however, the authorized data access ecosystem has seen the emergence of formal, bilateral access agreements between large aggregators and large data holders, which seek generally to move authorized access away from credential-based access and screen scraping towards tokenized access, commonly through application programming interfaces, or “APIs.” (When access is tokenized, a third party seeking access uses unique credentials that other parties cannot use; tokenized access is generally considered more secure than access that depends on using the consumer's own credentials.) In addition, a broad range of ecosystem participants have started to come together to develop standards for data sharing through APIs. Networks or consortia of data holders have begun to acquire or partner with data aggregators to offer access solutions to data holders as well as to their traditional data user clients. These moves may herald a broader move towards multilateral standards for data access, much as network standards function in two-sided payment card markets.

It is not clear, however, how these evolving access practices and standards will affect competition or innovation in markets in which participants use authorized data. It is also unclear how effectively they will address other consumer protection risks that may arise with authorized access, including risks relating to the methods by which consumer data is accessed and the purposes for which data users may use authorized data. Panelists at the Bureau's February 2020 “Symposium on Consumer Access to Financial Records and Section 1033 of the Dodd-Frank Act” (Symposium) identified significant progress on some of these issues and uncertainties by participants within the authorized data access ecosystem. However, they also made clear that participants have sometimes struggled to resolve issues in a manner satisfactory to all impacted parties, and according to some participants, in a manner commensurate with the access rights described in section 1033. 20 Participants expressed a range of perspectives on issues relating to, among others, data security, consumer privacy, data minimization, 21 consumer control and transparent use of consumer data, data accuracy, accountability and liability for errors and other problematic transactions, and the mechanisms by which consumer-permissioned parties access records. 22 For example, Symposium panelists discussed whether and how data holders might respect rights described in section 1033 and also refuse access to an authorized third party for security reasons, such as alleged fraud or deficient security practices. 23 Panelists similarly discussed consumer privacy risks arising from existing modes of authorized data access. Panelists proposed and discussed a variety of approaches and actions the Bureau might consider to address these kinds of issues. 24

There are other Federal laws with potential implications for consumer access to financial records pursuant to section 1033, particularly the authorized data access ecosystem. 25 Although Symposium participants did not always agree on whether or how these laws apply in the area of authorized data access, there was general consensus that the Bureau might need to resolve potential stakeholder uncertainty with respect to application of the following laws and their implementing regulations.

The Gramm-Leach-Bliley Act (GLBA) and the Bureau's implementing regulation, Regulation P, require financial institutions to provide their customers with notices concerning their privacy policies and practices, among other things. They also place certain limitations on the disclosure of nonpublic personal information to nonaffiliated third parties, and on the redisclosure and reuse of such information.

The Fair Credit Reporting Act (FCRA) and its implementing regulation, Regulation V, govern the collection, assembly, and use of consumer report information and provide the framework for the credit reporting system in the United States. They also promote the accuracy, fairness, and privacy of information in the files of consumer reporting agencies.

The Electronic Fund Transfer Act (EFTA) and its implementing regulation, Regulation E, establish a basic framework of the rights, liabilities, and responsibilities of participants in the electronic fund and remittance transfer systems. Among other requirements, EFTA and Regulation E prescribe requirements applicable to electronic fund transfers, including disclosures, error resolution, and rules related to unauthorized electronic fund transfers.

The Bureau has not promulgated any regulations to implement section 1033. The Bureau has, however, taken several actions in the interest of consumer access to financial records. The Bureau's approach has focused on identifying and promoting consumer interests in, among other areas, access, control, security, and privacy, while allowing the market to develop without direct regulatory intervention.

In 2016, the Bureau published in the Federal Register a Request for Information Regarding Consumer Access to Financial Information (2016 RFI) on topics including authorized data access. 26 The 2016 RFI described the authorized data access ecosystem as it existed then, as well as certain risks and issues related to that ecosystem. 27 The questions in the 2016 RFI focused on “current market practices” and on “how [commenters] believe market practices may or should change over time.”  28 In response, the Bureau received comments from a broad range of stakeholders, including large and small data holders, their trade associations, data aggregators, account data users, individual consumers, and consumer advocates. The Bureau collected further insights, including from stakeholders, through meetings and oral discussions.

In October 2017, the Bureau published two documents about consumer-authorized data access. The first document, entitled “Consumer-authorized financial data sharing and aggregation: Stakeholder insights that inform the Consumer Protection Principles” (Stakeholder Insights Report), summarized comments received in response to the 2016 RFI as well as insights gathered in meetings with market stakeholders. 29 The second document, “Consumer Protection Principles: Consumer-Authorized Financial Data Sharing and Aggregation” (2017 Principles), expressed “the Bureau's vision for . . . a robust, safe, and workable data aggregation market that gives consumers protection, usefulness, and value.”  30 The 2017 Principles covered nine topics related to consumer-authorized access: Access; data scope and usability; control and informed consent; authorizing payments; security; access transparency; accuracy; ability to dispute and resolve unauthorized access; and efficient and effective accountability mechanisms. 31

Following release of the 2017 Principles, the Bureau continued to monitor developments concerning consumer-authorized data access. To that end, the Bureau held the Symposium in February 2020. 32 Panelists at the Symposium represented large and small banks, data aggregators and their trade groups, fintechs, consumer advocates, and other market observers and researchers, and each made a written submission to the Bureau in advance of the Symposium. 33

As a follow-up to the Symposium, the Bureau published three documents: first, a report summarizing Symposium proceedings;  34 second, a blog post that offered consumers “key information about how data sharing works, what [consumers] should consider before sharing [their] data, and some tips on how [consumers] can best protect [their] data and accounts”  35 ; and third, an announcement of the Bureau's intention to publish this ANPR. 36

The Bureau believes that ensuring consumer access to financial records, consistent with other consumer protections, is important to achieving the Bureau's statutory purpose and objectives. Specifically, the Bureau is charged with “ensuring that consumers have access to markets for consumer financial products and services, and that [such markets] are fair, transparent, and competitive.”  37 Congress further instructed the Bureau to exercise its authorities so that “markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.”  38 The Bureau believes that the consumer access to financial records provided in section 1033 is an important component of the overall consumer protection framework established by the Dodd-Frank Act.

Through these information gathering opportunities, stakeholders have raised a number of concerns about the current state and direction of the consumer-authorized data access ecosystem. First, some stakeholders contend that not all consumers are able to authorize access to consumer data in a manner commensurate with the access rights described in section 1033. For example, stakeholders report that certain data fields—including, potentially, “costs, charges and usage data”  39 —are sometimes withheld. 40 Similarly, some stakeholders assert that data holders may be defining permitted “use cases” in ways that conflict with the access rights described in section 1033. 41 Although authorized data access ecosystem participants have moved towards data sharing standards that might help to resolve some of these issues, some stakeholders assert that those efforts will not, as a matter of course, fully effectuate the access rights described in section 1033. 42

Second, stakeholder positions suggest that issues relating to access rights may not be fully resolvable without accompanying resolution of a series of interconnected issues, such as the security of authorized access to consumer data or how consumers should most appropriately exercise control over authorized access. 43 Here, too, informal efforts by ecosystem participants have effected some improvements over time, but some stakeholders have asserted that Bureau regulatory involvement may be required to resolve some of these questions. 44

Third, stakeholders have raised questions about the application of other consumer financial laws and regulations to consumer-authorized data access. 45 For example, some Symposium panelists asserted that the law is unclear as to: (1) Which parties are liable for unauthorized access under the Electronic Fund Transfer Act and Regulation E, as well as under other provisions of law; (2) if and how the Fair Credit and Reporting Act applies to consumer data in the context of authorized data access; and (3) the manner in which the Gramm-Leach-Bliley Act and its implementing regulations regarding privacy and security apply to data aggregators. 46 Some market stakeholders have alleged that uncertainty, ambiguities, or irresolution relating to these kinds of questions may be impeding consumer data access.

In light of the authorized data access ecosystem's evolution since section 1033 was enacted, the Bureau has determined to commence a process that ultimately could lead to regulations that clarify the Bureau's compliance expectations and help to establish market practices to ensure that consumers have access to consumer financial data. The Bureau is issuing this ANPR to solicit comments and information that will assist the Bureau in developing proposed regulations under section 1033.

The Bureau seeks comment from interested parties—including consumers, consumer advocacy groups, industry participants, and other members of the public—on any (or all) of a number of questions relating to potential rulemaking in connection with section 1033. 47 These comments, together with other outreach and analysis, will help the Bureau to determine how it might formulate potential regulatory interventions to better effectuate consumer access to financial records as described in section 1033. Consumers have an interest in being able to secure data access as provided in section 1033 effectively and in a manner that enables ongoing and efficient consumer-friendly market innovation. In considering potential interventions, the Bureau will be mindful of avoiding undue or unnecessary burden on industry, particularly in light of self-regulatory standard-setting work that a broad group of market participants has conducted and continues to conduct and other initiatives that may help to foster a safe consumer-authorized data sharing ecosystem.

The Bureau has grouped questions into nine categories: Costs and benefits of consumer data access; competitive incentives; standard-setting; access scope; consumer control and privacy; other legal requirements; data security; data accuracy; and other information. For convenience, the questions (and this introduction) continue to use the defined terms from section II above, except when specifically noted. 48 Questions should be understood as directed to practices and outcomes in the United States (except where specifically noted), but commenters may reference non-U.S. information if they believe that is helpful to illuminate or explain the relevance of their comment to potential regulatory action in the U.S. The Bureau requests that, wherever possible, commenters support their responses with information about market practices (both in the U.S. and elsewhere) and/or other empirical data and analysis. The Bureau further encourages commenters to include in their responses any relevant information regarding the potential costs and benefits of consumer data access to consumers and covered persons. Such information may be qualitative, quantitative, or both.

1. What are the benefits to consumers from authorized data access? What are the benefits to consumers from direct access? What specific regulatory steps by the Bureau would enhance those impacts and how would they do so?

2. How does authorized data access facilitate competition and innovation in the provision of consumer financial services? What are the impacts of direct access on such competition and innovation? What specific regulatory steps by the Bureau would enhance that impact and how would they do so?

3. What costs to consumers flow from authorized data access? What costs result from direct access? What specific regulatory steps by the Bureau would reduce any such impacts and how would they do so?

4. Are there ways in which authorized data access has limited (or may in the future limit) competition and innovation resulting in harms to consumers? Are there ways in which the development of the ecosystem for authorized data access has caused (or may in the future cause) consumer harm? Are there ways in which direct access has had or may have such impacts? What specific regulatory steps by the Bureau would reduce any such impacts and how would they do so?

5. What should the Bureau learn about the costs and benefits of authorized data access from regulatory experience in State jurisdictions or in jurisdictions outside the United States? What should it learn from such sources with respect to direct access? How should this inform the Bureau's consideration of specific regulatory steps that it might take to implement section 1033?

6. How do the costs and benefits to data holders of authorized data access vary across different covered persons, including community banks and credit unions, and how should these variances inform the Bureau's actions with respect to implementing section 1033? How do the costs and benefits to data holders of direct access vary across different covered persons and how should these variances inform the Bureau's actions with respect to implementing section 1033?

7. What reasons are there to believe that competitive incentives will facilitate or undermine authorized data access? What responsive actions should the Bureau take and why?

8. To what extent should the Bureau expect the overlap across data holders, data aggregators, and data users to impact competition and innovation favorably or unfavorably? How should the Bureau take account of such overlap in implementing section 1033?

9. Should the Bureau expect access-related agreements between data holders and other participants in the authorized data access ecosystem to impact competition and innovation favorably or unfavorably? How should the Bureau take account of such impacts in implementing section 1033?

10. Should the Bureau expect data access ecosystem participants to develop and adopt multilateral rules applicable to authorized data access? How should the Bureau expect any such rules to impact competition and innovation and how should the Bureau take account of any such impacts in implementing section 1033?

11. Do customers of smaller data holders receive the same benefits from competition and innovation enabled by authorized data access as do customers of larger data holders? If not, why is that the case? How should any variance inform the Bureau's actions with respect to the implementation of section 1033?

12. Do consumers' individual decisions to authorize data access entail significant negative or positive externalities on other consumers, data holders, data aggregators or data users?  49 If so, what are those externalities and what impact do they have on competition, innovation, and the benefits, costs, and risks faced by consumers? How should such externalities inform the Bureau's actions with respect to the implementation of section 1033?

As part of the National Defense Authorization Act (NDAA) for Fiscal Year 2019, Public Law 115-232, Congress enacted the Export Control Reform Act of 2018 (ECRA), 50 U.S.C. 4801-4852. Section 1758 of ECRA (as codified under 50 U.S.C. 4817) authorizes BIS to establish appropriate controls on the export, reexport or transfer (in-country) of emerging and foundational technologies. Pursuant to ECRA, on November 19, 2018, the Bureau of Industry and Security (BIS) published an advance notice of public rulemaking (November 19 ANPRM) (83 FR 58201). That ANPRM identified biotechnology as part of a representative list of technology categories concerning which BIS, through an interagency process, sought public comment to determine whether there are specific emerging technologies that are important to U.S. national security for which effective controls can be implemented. As indicated by the May 23, 2019 (84 FR 23886), final rule that imposed multilateral controls on a number of items, consistent with the 2018 Plenary changes to the Wassenaar Arrangement List of Dual-Use Goods and Technologies, emerging technologies can include “software” and commodities. (See, e.g., Export Control Classification Number 3D005, 84 FR 23894.)

The biotechnology-related comments submitted to BIS in response to its November 19 ANPRM did not specifically address the question of export controls on “software” for the operation of nucleic acid assemblers and synthesizers controlled under Export Control Classification Number (ECCN) 2B352.

Under ECRA, emerging and foundational technologies are those essential to the national security of the United States, but not described in Section 721(a)(6)(A)(i)-(v) of the Defense Production Act of 1950 (50 U.S.C. 4565(a)), as amended. Section 1758(a) of ECRA (50 U.S.C. 4817(a)) outlines an interagency process for identifying emerging and foundational technologies that considers both public and classified information, as well as information from the Emerging Technology Technical Advisory Committee and the Committee on Foreign Investment in the United States. In identifying specific emerging technologies, the process also takes into account:

• The development of the emerging technologies in foreign countries;

• The effect export controls might have on the development of the emerging technologies in the United States; and

• The effectiveness of export controls on limiting the proliferation of the emerging technologies in foreign countries.

In addition, Section 1758(a)(2)(C) of ECRA (50 U.S.C. 4817(a)(2)(C)) requires that the interagency process for identifying emerging technologies include a notice and comment period.

The Secretary of Commerce must establish appropriate controls on the export, reexport or transfer (in-country) of technology identified pursuant to the Section 1758 process, and in doing so, must consider the potential end-uses and end-users of emerging and foundational technologies, and the countries to which exports from the United States are restricted ( e.g., embargoed countries). While the Secretary has discretion to set the level of export controls, at a minimum he must require a license for the export of such technologies to countries subject to a U.S. embargo, including those countries subject to an arms embargo.

“Software” for the operation of nucleic acid assemblers and synthesizers controlled under ECCN 2B352.j on the Commerce Control List (CCL), in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), has been identified as a technology to be evaluated as an emerging technology, consistent with the process described in Section 1758 of ECRA. This identification is based on a finding that such “software” is capable of being utilized in the production of pathogens and toxins and, consequently, the absence of export controls on such “software” could be exploited for biological weapons purposes.

Consistent with BIS's authority to evaluate the level of controls that would be appropriate for the export, reexport or transfer (in-country) of emerging technologies, this rule proposes to amend the CCL by adding a new ECCN 2D352 to control such “software.” This “software” is not currently included on any of the Australia Group (AG) common control lists—consequently, the controls on this “software,” as proposed by this rule, would be unilateral in nature, absent the adoption of comparable controls by the Australia Group.

In addition, although this rule does not propose to amend ECCN 2E001 (which controls, inter alia, “technology” for the “development” of the nucleic acid assemblers and synthesizers described in ECCN 2B352.j), the heading of ECCN 2E001 indicates that, with limited exceptions, ECCN 2E001 controls “technology for the “development” of “software” listed under Category 2D of the CCL. Consequently, if the changes proposed in this rule were to go into effect, ECCN 2E001 would control “technology” for the “development” of the “software” that would be controlled under new ECCN 2D352. This expansion in the scope of ECCN 2E001 would be unilateral in nature.

Public comments submitted to BIS in response to this proposed rule will help BIS and other U.S. Government agencies to apply the criteria set forth in Section 1758 of ECRA and identify and assess the appropriate level of controls that should apply to the “software” proposed for control under ECCN 2D352 and “technology” for the “development” of such “software,” as proposed to be controlled under ECCN 2E001.

BIS is publishing this proposed rule to obtain public comments on the proposed application of CB controls to “software” for the operation of nucleic acid assemblers and synthesizers described in ECCN 2B352.j. and to “technology” related to such “software” that would satisfy the controls described in ECCN 2E001. Consistent with Section 1758(a)(2)(C) of ECRA (50 U.S.C. 4817(a)(2)(C)), this proposed rule provides the public with notice and the opportunity to comment on controlling this technology as described herein. Specifically, BIS welcomes any comments on this proposed rule relevant to the following:

(1) Whether the proposed controls are clear and adequately address “emerging and foundational technologies” within the context of biological weapons related capabilities and developments (to the extent that this is not the case, comments should identify specific control text that would be more appropriate to these ends);

(2) The current capability for the “development” of such “software” in the United States and other countries, including the extent to which the proposed controls would affect “software” that is currently being produced and/or sold, either within or outside the United States ( e.g., whether the proposed controls would inadvertently control any “software” that is suitable almost exclusively for legitimate commercial or scientific applications);

(3) The effect that implementation of the proposed controls would have on the future “development” of such “software” and related “technology” in the United States; and

(4) The effectiveness of the proposed controls in terms of limiting the availability of such “software” and related “technology” abroad.

BIS also welcomes comments concerning whether these controls should be implemented multilaterally (rather than unilaterally), in the interest of increasing their effectiveness and minimizing their impact on U.S. industry (multilateral export controls are preferable to unilateral controls, because the former typically place U.S. industry on a more level playing field versus producers/suppliers in other countries). In this regard, note that Section 1758(c) of ECRA (as codified under 50 U.S.C. 4817(c)) provides that “the Secretary of State, in consultation with the Secretary [of Commerce] and the Secretary of Defense, and the heads of other Federal agencies, as appropriate, shall propose that any technology identified pursuant to subsection (a) [of ECRA] be added to the list of technologies controlled by the relevant multilateral export control regimes”. Subsection (a) of section 1758 (as codified under 50 U.S.C. 4817(a)) addresses the interagency process for identifying emerging technologies.

The public comments submitted in response to this proposed rule should address specific aspects of the proposed addition of ECCN 2D352 to the CCL in relation to the criteria described above ( e.g., identify the specific aspects in which the proposed controls would satisfy these criteria or fail to do so).

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including: potential economic, environmental, public health and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits and of reducing costs, harmonizing rules, and promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

The cost-benefit analysis required pursuant to Executive Orders 13563 and 12866 indicates that this rule is intended to improve national security as its primary direct benefit. Specifically, implementation, in a timely manner, of the proposed changes described herein would enhance the national security of the United States by reducing the risk that global international trade involving dual-use chemical/biological items would contribute to the proliferation of chemical and biological weapons (CBW) of mass destruction. These controls are essential given that the international chemical and biotechnology industries are a target for proliferators as a source of materials for CBW programs. In calculating the costs that would be imposed by this rule, BIS estimates that no more than 15 additional license applications would have to be submitted to BIS, annually, as a result of the implementation of the amendments described in this rule (see Rulemaking Requirements #2, below). Application of the cost-benefit analysis required under Executive Orders 13563 and 12866 to this rule, as described above, indicates that this rule is intended to improve the national security of the United States as its primary direct benefit. Accordingly, consistent with the stated purpose of the proposed addition of ECCN 2D352 to the Commerce Control List (CCL), the changes proposed by this rule meet the requirements set forth in the April 5, 2017, OMB guidance implementing Executive Order 13771 (82 FR 9339, February 3, 2017), regarding what constitutes a regulation issued “with respect to a national security function of the United States,” and this rule is, therefore, exempt from the requirements of E.O. 13771.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule contains the following collections of information subject to the requirements of the PRA. These collections have been approved by OMB under control numbers 0694-0088 (Simplified Network Application Processing System) and 0694-0096 (Five Year Records Retention Period). The approved information collection under OMB control number 0694-0088 includes license applications, among other things, and carries a burden estimate of 29.6 minutes per manual or electronic submission for a total burden estimate of 31,833 hours. The approved information collection under OMB control number 0694-0096 includes recordkeeping requirements and carries a burden estimate of less than 1 minute per response for a total burden estimate of 248 hours.

Although this proposed rule would make important changes to the EAR for items controlled for chemical/biological (CB) reasons, BIS believes the overall increase in costs and burdens due to this rule would be minimal if implemented in a final rule. Specifically, BIS expects the burden hours associated with these collections would increase, slightly, by 7 hours and 39 minutes ( i.e., 15 applications × 30.6 minutes per response) for a total estimated cost increase of $230 ( i.e., 7 hours and 39 minutes × $30 per hour). The $30 per hour cost estimate for OMB control number 0694-0088 is consistent with the salary data for export compliance specialists currently available through glassdoor.com ( glassdoor.com estimates that an export compliance specialist makes $55,280 annually, which computes to roughly $26.58 per hour). This increase is not expected to exceed the existing estimates currently associated with OMB control numbers 0694-0088 and 0694-0096. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Jasmeet Seehra, Office of Management and Budget, by email to Jasmeet_K._Seehra@omb.eop.gov or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, 14th Street & Pennsylvania Avenue NW, Room 2705, Washington, DC 20230 or by email to RPD2@bis.doc.gov.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to Section 1762 of the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation and delay in effective date. Notwithstanding, BIS believes this rule would benefit from public comment prior to issuance. Consistent with the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601 et seq. ), BIS has prepared the following initial regulatory flexibility analysis (IRFA) of the impact that this proposed rule, if adopted, would have on small businesses.

The policy reasons for issuing this proposed rule are discussed in the background section of the preamble of this document and, consequently, are not repeated here.

The objective of this proposed rule, and any other emerging technology proposed rules published by BIS, is to control emerging and foundational technologies identified by BIS and its interagency partners as being essential to U.S. national security. The legal basis for this proposed rule is as follows: 50 U.S.C. 4801-4852.

No other federal rules duplicate, overlap, or conflict with this proposed rule.

This proposed rule would apply to all persons engaged in the export, reexport or transfer (in-country) of the “software” proposed for control under ECCN 2D352 and related “technology” subject to the EAR. Presently, this “software” and related “technology” is used in research and development activities in many U.S. university and military laboratories. Therefore, BIS anticipates that the proposed controls would result in “deemed” export license applications (for exports to foreign nationals located within the United States) to allow access to this “technology” by foreign students and faculty at U.S. universities, as well as by non-U.S. employees of U.S. biochemical firms. There would most likely also be “deemed” reexport license applications for the release of this “technology” to third-country foreign nationals located in foreign countries who are engaged in research and development activities involving this “technology.”

BIS does not collect or maintain the data necessary to determine how many of the affected persons are small entities as that term is used by the Small Business Administration. Prior to issuing this proposed rule, BIS received 36 comments on biotechnology in response to the November 19 ANPRM. None of these commenters specifically identified themselves as small businesses, but small businesses may have chosen to provide input through larger entities, such as trade associations.

However, BIS was able to estimate the number of license applications that the agency anticipates receiving as a result of this proposed rule and is using that estimate as a means of assessing the impact on small businesses. Using the North American Industry Classification System Codes (NAICS) 325414 (Biological Product (except Diagnostic) Manufacturing), BIS determined that the standard small business size in this industry is 1,250 employees. Using Table 1a of the Census Bureau's 2016 Exports by Company Type and Employment Size and extrapolating to 1,250 employees, BIS then estimated that 41% of all identified companies that export in this industry are small businesses. BIS also estimates that it will receive 15 license applications per year for the items described in this proposed rule (see the PRA estimates described in Rulemaking Requirements #2, above). Based on that information, BIS estimates that the agency will receive approximately 6 license applications per year from small businesses, or roughly 41% of the 15 estimated license applications.

In addition, based on the burden estimate for OMB under control numbers 0694-0088 (Simplified Network Application Processing System) and 0694-0096 (Five Year Records Retention Period), BIS expects that the total burden hours for small businesses associated with these EAR-related collections would increase only slightly, by just under 3 hours and 4 minutes ( i.e., 6 applications × 30.6 minutes per response), for a total estimated cost increase of just under $92 ( i.e., 3 hours and 4 minutes × $30 per hour).

The amendments proposed in this rule, if implemented, also would trigger a small information collection burden under the U.S. Census Bureau's Foreign Trade Regulations (FTR) (15 CFR part 30), which contain the Electronic Export Information (EEI) filing requirements under the Automated Export System (AES). This FTR-related information collection has been approved by OMB under control number 0607-0152 (Automated Export System (AES) Program) and carries a burden hour estimate of 3 minutes per electronic submission. This collection, together with the aforementioned EAR-related information collections, would result in a total estimated cost increase to small businesses of just under $94 ( i.e., 3 hours and 7 minutes × $30 per hour). Note that, for purposes of consistency, the $30 per hour cost estimate used for the EAR-related information collections described above is also applied to this FTR-related information collection (which also would involve work performed by export compliance specialists).

Based on the analysis provided above, the amendments proposed in this rule would not impose a significant economic impact on a substantial number of small businesses.

The changes proposed in this rule, if adopted, would mean that certain items currently eligible for export, reexport or transfer (in-country) to most destinations under the No License Required (NLR) designation would require an EAR authorization ( i.e., in accordance with the terms and conditions of an EAR license exception or a license issued by BIS). Adding these items to the CCL, to be controlled under a new ECCN 2D352, may also change the export clearance requirements under the FTR for certain exports of these items by triggering an EEI filing requirement in AES—this requirement generally does not apply to items below a certain value that are classified as EAR99.

To the extent that compliance with the changes proposed in this rule would impose a burden on persons, including small businesses, BIS believes the burden would be minimal. The reclassification process would need to be done only once per license applicant for exports, reexports or transfers (in-country) of these emerging technology items and, consequently, would constitute a one-time burden for each applicant. Similarly, assessing the availability of license exceptions and/or applying for and using BIS licenses would impose some minimal burden on persons, including small businesses.

However, it should be noted that these EAR requirements would likely have less impact than might otherwise be the case, because of the resources that BIS makes available to all exporters, including small businesses. Specifically, BIS's website has free on-line training explaining export basics, including instructions on how to register for and use BIS's online license application tool. BIS also provides free export counseling by telephone and email via both its Washington, DC and Western Regional offices. In addition, BIS accepts requests for commodity classifications and processes them without charge to assist those exporters who need assistance in classifying their items for the purpose of determining whether any CCL-based license requirements would apply.

As noted above, BIS does not believe that the amendments proposed in this rule, if published in a final rule, would have a significant economic impact on small businesses. Nevertheless, consistent with 5 U.S.C. 603(c), BIS considered significant alternatives to these proposed amendments to assess whether the alternatives would: (1) Accomplish the stated objectives of this rule (consistent with the emerging technology requirements in ECRA); and (2) minimize any significant economic impact of this rule on small entities. BIS could have proposed a much broader control on “software” capable of operating nucleic acid assemblers and synthesizers controlled under ECCN 2B352 that would have captured a greater amount of such “software” and related “technology.” That in turn would have had a greater impact not only on small businesses, but also on research and development laboratories (both academic and corporate), which are involved in advancing biological technology. BIS has determined that proposing focused controls on specific “software” and related “technology” ( i.e., the “software” proposed for control under new ECCN 2D352 and corresponding “development” “technology” in ECCN 2E001) is the least disruptive alternative for implementing export controls in a manner consistent with controlling technology that has been determined, through the emerging technology interagency process authorized under ECRA, to be essential to U.S. national security.

BIS is not proposing different compliance or reporting requirements for small businesses. If a small business is subject to a compliance requirement for the export, reexport or transfer (in-country) of this “software” and related “technology,” then it would submit a license application using the same process as any other company ( i.e., electronically via SNAP-R). The license application process is free of charge to all entities, including small businesses. In addition, as noted above, the resources and other compliance tools made available by BIS typically serve to lessen the impact of any EAR license requirements on small businesses.

Lastly, consistent with 5 U.S.C. 603(c), BIS assessed the use of performance standards rather than design standards and also considered whether an exemption for small businesses was practical under the circumstances ( i.e., within the context of the changes proposed in this rule).

The “software” proposed for control under new ECCN 2D352 and related “technology” that warrant control under this proposed rule are capable of being used to operate nucleic acid assemblers and synthesizers controlled under ECCN 2B352 for the purpose of generating pathogens and toxins without the need to acquire controlled genetic elements and organisms ( i.e., they are capable of being used in the production of biological agents). However, because this “software” and related “technology” are dual-use items, they also have legitimate commercial and scientific applications. Consequently, controlling this “software” and related “technology” based on design standards is the most appropriate way to control these items. In the absence of such controls, there may be an unacceptable risk of diversion of these items to biological weapons end-uses.

This proposed rule does not contain an exemption for small businesses from this license requirement, because BIS and its interagency partners are assessing whether these controls are essential to U.S. national security. Specifically, this “software” and related “technology” could be used for biological weapons purposes and, as such, controlling these items on the CCL is essential to U.S. national security. An exemption for small businesses would undermine the effectiveness of these proposed controls.

BIS has identified the “software” and related “technology” addressed in this proposed rule as an emerging technology that warrants public notice and comment. Consequently, consistent with the Regulatory Flexibility Act, BIS has prepared this IRFA addressing the impact that this proposed rule, if adopted, would have on small entities. BIS's assessment indicates that the amendments proposed in this rule would not have a significant economic impact on a substantial number of small entities.

Please submit any comments concerning this IRFA in accordance with the instructions provided in the ADDRESSES section of this proposed rule.

For the reasons stated in the preamble, part 774 of the Export Administration Regulations (15 CFR parts 730-774) is proposed to be amended as follows:

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: http://regulations.gov. Follow the search instructions on that website to view public comments.

The temporary regulations published elsewhere in this issue of the Federal Register add § 54.9815-2713T to the Miscellaneous Excise Tax Regulations. The proposed and temporary regulations are being published as part of a joint rulemaking with the Department of Labor and HHS. The text of those temporary regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the temporary regulations and provides a regulatory impact analysis.

The principal author of this notice of proposed rulemaking is Dara Alderman, Office of the Chief Counsel (Employee Benefits, Exempt Organizations and Employment Taxes). The proposed regulations, as well as the temporary regulations, have been developed in coordination with personnel from the Department of Labor and HHS.

Accordingly, 26 CFR part 54 is proposed to be amended as follows:

Colorful sandstone cliffs tower 50 to 200 feet above the vast and glistening fresh water of Lake Superior. Deep shoreline forests open onto sparking inland lakes, gurgling streams, and waterfalls. Sand dunes perch atop miles of high sand bluffs and unspoiled beaches. Beaver-chewed tree stumps, a raven's nest balanced high on a rocky ledge, and cloven deer tracks imprinted in the mud hint at the abundance of wildlife that inhabit the beautiful and diverse landscape. These features create the spectacular setting that is Pictured Rocks National Lakeshore. Congress established this location as the country's first national lakeshore in 1966 to preserve the shoreline, cliffs, beaches, and dunes, and to provide an extraordinary place for recreation and discovery. Little more than 6 miles across at its widest point, the Lakeshore hugs Lake Superior's shoreline for nearly 40 miles. The Lakeshore consists of two zones: The Lakeshore Zone, federal land managed by the National Park Service (NPS); and the Inland Buffer Zone, a mixture of federal, state, and private land. Together these zones encompass nearly 73,000 acres of protected land and water that stretch from Munising to Grand Marais, Michigan. Attractions at the Lakeshore include a lighthouse and former Coast Guard stations, along with old farmsteads and orchards. The Lakeshore is a year-round recreational destination where hiking, camping, hunting, nature study, and winter activities abound.

The NPS manages the Lakeshore under the NPS Organic Act (54 U.S.C. 100101 et seq. ), which gives the NPS broad authority to regulate the use of the lands and waters under its jurisdiction. The Organic Act authorizes the Secretary of the Interior, acting through the NPS, to “make and publish such regulations the Secretary considers necessary or proper for the use and management of [National Park] System units.” In the Lakeshore's enabling act, Congress directed the Secretary of the Interior, acting through the NPS, to preserve the Lakeshore for the benefit, inspiration, education, recreational use, and enjoyment of the public. 16 U.S.C. 460s.

Executive Order 11644, “Use of Off-Road Vehicles on the Public Lands,” issued in 1972 and amended by Executive Order 11989 in 1977, requires federal agencies to issue regulations for the designation of specific areas and routes on public lands where off-road vehicles, including snowmobiles, may be used. The NPS implemented the Executive Order as it relates to snowmobiles in 36 CFR 2.18. Under 36 CFR 2.18(c), the use of snowmobiles is prohibited, except on designated routes and water surfaces used by motor vehicles or motorboats during other seasons. These routes and water surfaces must be designated by special regulation and only when their use is consistent with the park's natural, cultural, scenic and aesthetic values; safety considerations; and park management objectives; and will not disturb wildlife or damage park resources.

On February 24, 2017, President Trump issued Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” This Executive Order established a regulatory reform initiative to alleviate unnecessary regulatory burdens placed on the American people. As part of the Department of the Interior's approach for implementing this initiative, the NPS is reviewing its regulations in order to identify those that should be repealed, replaced, or modified. These include regulations that are outdated or unnecessary. The NPS has identified the special regulations for the Lakshore relating to snowmobiles as appropriate for modification under Executive Order 13771 for the reasons explained below.

On April 18, 2018, the Secretary of the Interior signed Secretary Order 3366, “Increasing Recreational Opportunities on Lands and Waters Managed by the U.S. Department of the Interior.” This Order directed all Department bureaus, including the NPS, to review their regulations in order to increase existing recreational opportunites. The NPS expects the proposed rule to make the public aware of recreational opportunities at the Lakeshore by naming several snowmobile routes in the special regulation that are not currently identified.

Snowmobiling is a popular activity in and around the Lakeshore. In the winter, a number of unplowed roads lead to major points of interest, particularly the rock formations at Miners Castle and the tall dunes at Log Slide. Existing special regulations for the Lakeshore at 36 CFR 7.32 allow snowmobiles on the frozen waters of Lake Superior and Grand Sable Lake. They also state that snowmobiles are allowed on the major visitor use roads that are unplowed, or on road shoulders of plowed roads. Snowmobiles are prohibited elsewhere in the Lakeshore, including cross-country travel and travel on non-motorized trails. After this general statement about where snowmobiles are allowed in the Lakeshore, the special regulations list nine “designated snowmobile routes” that are roads used by motor vehicles during other seasons.

In 2018, the NPS met with the Alger Road County Commission about rerouting a snowmobile route from an unplowed, paved county road (County Highway H-58) to an unplowed, scenic dirt road, part of which runs through the Lakeshore. During this meeting, the NPS recognized that although there is a general designation in the special regulations allowing snowmobiles on all unplowed roads within the Lakeshore, the rerouted trail was not on the list of designated snowmobile routes. This led to a discussion about whether the special regulations for the Lakeshore could be revised, consistent with the purposes of Executive Order 13771 and Secretary`s Order 3366, to identify, for the benefit of the public, each route within the Lakeshore where snowmobiles are allowed. This would remove ambiguity in the existing regulations about whether snowmobiles are allowed on unplowed roads or the shoulders of plowed roads that are not identified in the list of “designated snowmobile routes.” This would also bring the special regulations for the Lakeshore into full compliance with 36 CFR 2.18, which requires that snowmobiles routes be promulgated as special regulations. Clarifying where snowmobiles are allowed would have the added benefit of making it easier for NPS law enforcement officers to enforce the prohibition of snowmobile use off designated routes. This will help the NPS meet its statutory mandates to preserve the resources of the Lakeshore.

This proposed rule would revise the special regulations for the Lakeshore at 36 CFR 7.32 to identify all routes and water surfaces within the Lakeshore where snowmobiles may be used. Some of these routes are already identified in the special regulations in paragraphs (a)(1)(i)-(ix) and would remain as designated routes. Other routes are not identified in the special regulations and would be added in paragraphs (a)(1)(x)-(xv). All designated routes would be roads used by motor vehicles during other seasons. If a route is plowed, the proposed rule would limit snowmobiles to road shoulders consistent with existing regulations. The proposed rule would continue to identify the frozen waters of Lake Superior and Grand Sable Lake as open to snowmobiles under redesignated paragraph (a)(1)(xvi). These waters are open to motorboats during other seasons.

The proposed rule would remove the general designation of all unplowed roads and shoulders of plowed roads to make it clear that if a location is not on the list of designated routes and water surfaces, snowmobiles are prohibited. The NPS does not expect these changes to affect visitor use patterns within the Lakeshore because the NPS already allows snowmobiles on the unplowed roads and shoulders of plowed roads consistent with the general designation in the special regulations. The public may become aware of legal snowmobile routes that are not listed in the existing special regulations which could lead to increased recreation and access. On the other hand, the public may become aware that snowmobiles are not allowed in locations where before it had been unclear. The NPS expects these circumstances to be exceptional and not notable consequences of the proposed rule. The goal of the proposed changes is to provide the public with simple and easy-to-understand rules about snowmobile use that minimize the potential for uncertainty.

The proposed rule also would state that the Superintendent may open or close designated routes and water surfaces, or portions thereof, to snowmobile travel after taking into consideration the location of wintering wildlife, appropriate snow cover, public safety, and other factors. The proposed rule would require the Superintendent to notify the public of any such actions using one or more of the methods in 36 CFR 1.7(a).

Finally, the proposed rule would make minor changes to the descriptions of three routes that are already designated in the special regulations. In paragraph (a)(1)(v), the proposed rule would fix a typo by replacing the term “Country Road” with the term “County Road.” In paragraphs (a)(1)(viii) and (a)(1)(ix), the proposed rule would clarify that the designated roads no longer go directly to the Log Slide, and instead terminate at the Log Slide parking area.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has waived review of this proposed rule and, at the final rule stage, will make a separate decision as to whether the rule is a significant regulatory action as defined by Executive Order 12866.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

This proposed rule is not an Executive Order 13771 regulatory action because this proposed rule is not significant under Executive Order 12866.

The proposed rule would modify special regulations for the Lakeshore to designate snowmobile routes on roads and water surfaces that are used by motor vehicles or motorboats during other seasons. For the reasons explained above, the proposed rule is administrative in nature and not expected to change visitor use patterns at the Lakeshore because the NPS would not be allowing any new uses. The costs and benefits of a regulatory action are measured with respect to its existing baseline conditions. No changes are anticipated compared to baseline conditions because this regulatory action is administrative in nature with the intent to clarify existing regulations. In addition, this action will not impose restrictions on local businesses in the form of fees, training, record keeping, or other measures that would increase costs. Given those findings, this proposed regulatory action will not impose a significant economic impact on a substantial number of small entities.

This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The proposed rule would not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This proposed rule would not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, the proposed rule would not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This proposed rule only affects use of federally-administered lands and waters. It has no outside effects on other areas. A federalism summary impact statement is not required.

This proposed rule complies with the requirements of Executive Order 12988. This proposed rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this proposed rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and have determined that tribal consultation is not required because the proposed rule will have no substantial direct effect on federally recognized Indian tribes.

This proposed rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

This proposed rule does not constitute a major federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the proposed rule is covered by a categorical exclusion. The NPS has determined the proposed rule is categorically excluded under NPS NEPA Handbook 2015 Section 3.3(A)(8) because this proposed rule revises existing regulations for the Lakeshore in a manner that would not (i) increase public use to the extent of compromising the nature and character of the area or causing physical damage to it; (ii) introduce noncompatible uses that might compromise the nature and characteristics of the area or cause physical damage to it; (iii) conflict with adjacent ownerships or land uses; or (iv) cause a nuisance to adjacent owners or occupants. The NPS has also determined that the proposed rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This proposed rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

We are required by Executive Orders 12866 (section 1(b)(12)) and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in the ADDRESSES section of this document.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 7 as follows:

The revisions and additions to read as follows:

In an effort to reduce the incidence of overdose among the veteran population, Congress, in two separate statutes, has required that VA must exempt from co-payment (1) opioid antagonists furnished under chapter 17 to a veteran who is at high risk for overdose of a specific medication or substance in order to reverse the effect of such an overdose, and (2) education on the use of opioid antagonists to reverse the effects of overdoses of specific medications or substances. See Public Law 114-198, sec. 915 (July 22, 2016) and Public Law 114-223, sec. 243 (Sept. 29, 2016). These provisions were effective upon enactment and have already been implemented. These provisions assist veterans by eliminating copayments for life-saving medication and education on the use of such medication, with the goal of reducing the incidence of overdose deaths among the veteran population. This proposed rule would amend two of VA's copayment regulations, 38 CFR 17.108 and 17.110, to accurately implement these changes in law. This proposed rule would also add an explanation of how VA would identify a veteran at high risk for overdose under the new provisions.

Section 17.108 establishes the copayment amounts for inpatient hospital care and outpatient medical care. Paragraph (e) lists the types of services that are exempt from the inpatient hospital care and outpatient medical care copayment. We are proposing to add a new paragraph (e)(18) to implement the laws described above. Under paragraph (e)(18), we clarify that VA will not charge a copayment for an outpatient medical care visit that is solely for education on the use of opioid antagonists to reverse the effects of overdoses of specific medications or substances. We note that while VA is not currently charging copayments for education on the use of opioid antagonists (in accordance with Pub. L. 114-198), codifying this in regulation will help ensure this policy continues to be followed. We also propose two minor conforming technical amendments to paragraphs (e)(16) and (e)(17) in section 17.108.

Section 17.110 establishes the copayment amount for medications. Paragraph (c) lists the medications that are not subject to the copayment requirement. To implement section 915 of the Public Law 114-198, we propose adding a new paragraph (c)(12) to state that VA will not charge a copayment for opioid antagonists furnished to a veteran who is at high risk for overdose of a specific medication or substance in order to reverse the effect of such an overdose. In paragraph (c)(12), we would also incorporate a definition of a high risk veteran for overdose for the purposes of this proposed rule. The proposed definition specifies that VA considers a high risk veteran for overdose to be a veteran who is prescribed or using opioids or has an opioid use history, and who is at increased risk for opioid overdose as determined by VA or whose provider deems, based on their clinical judgment, that the veteran may benefit from ready availability of an opioid antagonist. We would also provide the following examples of a veteran who is at high risk for overdose of a specific medication or substance in order to reverse the effect of such an overdose: A veteran with an opioid or substance use disorder diagnosis; a veteran receiving treatment for an opioid or substance use disorder diagnosis, such as receiving opioid agonist therapy or inpatient, residential, or outpatient treatment for such diagnosis, or attending a support group for such diagnosis; a veteran with a history of prescription opioid misuse or injection opioid use; a veteran with a history of previous opioid overdose; a veteran who is taking an extended-release or long-acting prescription opioid; a veteran with household or community access to opioids who is at increased risk for overdose ( e.g., psychiatric disorder or high risk for suicide) as determined by VA; a veteran predicted to be at high risk for overdose based on standardized assessments or predictive models ( e.g., Risk Index for Overdose or Serious Opioid-induced Respiratory Depression [RIOSORD], Stratification Tool for Opioid Risk Mitigation [STORM]); and a veteran in any of the aforementioned groups with a period of abstinence from opioids ( e.g., due to treatment, detoxification, incarceration) as loss of tolerance can increase risk for overdose. This definition is necessary for VA to implement Public Laws 114-198 and 114-223. Public Laws 114-198 and 114-223 do not define a veteran who is at high risk for overdose of a specific medication or substance in order to reverse the effect of such an overdose; however, providing a definition will facilitate the identification of such veterans. Early identification of these veterans can facilitate provision of life-saving opioid antagonist medication.

This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary hereby certifies this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The adoption of the rule would not directly affect any small entities. There are no small entities involved with VA's process and/or adjustment of Veterans copayments for medications/services. The provisions of this rulemaking only apply to the internal operations of VA. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866.

VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

This proposed rule is not expected to be an E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

The Catalog of Federal Domestic Assistance program number and title for this proposed rule are as follows: 64.009, Veterans Medical Care Benefits; 64.012, Veterans Prescription Service; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.041, VHA Outpatient Specialty Care; 64.045, VHA Outpatient Ancillary Services; 64.047, VHA Primary Care; 64.048, VHA Mental Health Clinics.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Brooks D. Tucker, Assistant Secretary for Congressional and Legislative Affairs, Performing the Delegable Duties of the Chief of Staff, Department of Veterans Affairs, approved this document on October 29, 2020, for publication.

For the reasons set forth in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 17 as set forth below:

On September 18, 2020 (85 FR 58315), EPA proposed to partially approve and partially disapprove a revision to the Michigan SIP for attaining the 2010 1-hour primary sulfur dioxide (SO 2 ) national ambient air quality standard (NAAQS) for the Detroit SO 2 nonattainment area. This SIP revision includes Michigan's attainment demonstration and other elements required under the Clean Air Act (CAA). EPA proposed to approve the base year emissions inventory, and to affirm that the nonattainment new source review requirements for the area have been met. EPA proposed to disapprove the attainment demonstration, as well as the requirements for meeting reasonable further progress toward attainment of the NAAQS, reasonably available control measures and reasonably available control technology, and contingency measures. Finally, EPA proposed to disapprove the plan's control measures for two facilities as not demonstrating attainment, and proposed to approve the enforceable control measures for two facilities as SIP strengthening. The comment period closed on October 19, 2020. On October 9, 2020, EPA received a request from the Sierra Club to extend the comment period for four weeks from the end of the comment period.

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

Under section 109 of the Act, the EPA has promulgated NAAQS for certain pollutants, including PM 2.5 (40 CFR 50.2(b)). Once the EPA promulgates a NAAQS, section 107 of the Act specifies a process for the designation of each area within a state, generally as either an attainment area (an area attaining the NAAQS) or as a NAA (an area not attaining the NAAQS, or that contributes to nonattainment of the NAAQS in a nearby area). For PM 2.5 , certain areas have also been designated “unclassifiable.” These various designations, in turn, trigger certain state planning requirements.

For all areas, regardless of designation, section 110 of the Act requires that each state adopt and submit for EPA approval a plan to provide for implementation, maintenance, and enforcement of the NAAQS. This plan is commonly referred to as a SIP. Section 110 contains requirements that a SIP must meet to gain EPA approval. 1 For NAAs, SIPs must meet additional requirements in part D of Title I of the Act. Usually, SIPs include measures to control emissions of air pollutants from various sources, including stationary, mobile, and area sources. For example, a SIP may specify emission limits at power plants or other industrial sources.

Under section 109 of the Act, the EPA has promulgated NAAQS for certain pollutants, including PM 2.5 (40 CFR 50.2(b)). Once the EPA promulgates a NAAQS, section 107 of the Act specifies a process for the designation of each area within a state, generally as either an attainment area (an area attaining the NAAQS) or as a NAA (an area not attaining the NAAQS, or that contributes to nonattainment of the NAAQS in a nearby area). For PM 2.5 , certain areas have also been designated “unclassifiable.” These various designations, in turn, trigger certain state planning requirements.

For all areas, regardless of designation, section 110 of the Act requires that each state adopt and submit for EPA approval a plan to provide for implementation, maintenance, and enforcement of the NAAQS. This plan is commonly referred to as a SIP. Section 110 contains requirements that a SIP must meet to gain EPA approval. 2 For NAAs, SIPs must meet additional requirements in part D of Title I of the Act. Usually, SIPs include measures to control emissions of air pollutants from various sources, including stationary, mobile, and area sources. For example, a SIP may specify emission limits at power plants or other industrial sources.

On October 17, 2006 (71 FR 61144), the EPA revised the level of the 24-hour PM 2.5 NAAQS, lowering the primary and secondary standards from the 1997 standard of 65 micrograms per cubic meter (µg/m 3 ) to 35 µg/m 3 . On November 13, 2009 (74 FR 58688), the EPA designated three NAAs in Utah for the 2006 24-hour PM 2.5 NAAQS of 35 µg/m 3 . These are the Salt Lake City; Provo; and Logan, Utah-Idaho NAAs.

The EPA originally issued a rule in 2007  3 regarding implementation of the 2006 24-hour PM 2.5 NAAQS for the NAA requirements specified in CAA title I, part D, subpart 1. Under subpart 1, Utah was required to submit an attainment plan for each area no later than three years from the date of nonattainment designation. These plans needed to provide for the attainment of the PM 2.5 standards as expeditiously as practicable, but no later than five years from the date the areas were designated nonattainment.

In 2013, the U.S. Court of Appeals for the District of Columbia held that the EPA should have implemented the 2006 PM 2.5 24-hour standards, as well as the other PM 2.5 NAAQS, based on both subpart 1 and subpart 4 of CAA title I, part D. 4 Under subpart 4, all NAAs are initially classified as Moderate, and Moderate area attainment plans must address the requirements of subpart 4 as well as subpart 1. Additionally, subpart 4 sets a different SIP submittal due date and attainment year. For a Moderate area, the attainment SIP is due 18 months after designation and the attainment year is as expeditiously as practicable, but no later than the end of the sixth calendar year after designation.

On June 2, 2014 (79 FR 31566), the EPA finalized the Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particulate (PM 2.5 ) National Ambient Air Quality Standard (NAAQS) and 2006 24-hour PM 2.5 NAAQS. This rule classified as Moderate the areas that were designated in 2009 as nonattainment and set the attainment SIP submittal due date for those areas at December 31, 2014. Additionally, this rule established the Moderate area attainment date of December 31, 2015.

When an area is designated as a Moderate NAA under subpart 1 and subpart 4, the CAA requires the State to submit the following Moderate area SIP elements:

1. A comprehensive, accurate, current inventory of actual emissions from all sources of PM 2.5 and PM 2.5 precursors in the area (CAA section 172(c)(3)).

2. Provisions to assure that reasonably available control measures (RACM), including reasonably available control technologies (RACT), for the control of direct PM 2.5 and PM 2.5 precursors shall be implemented no later than four years after the area is designated (CAA sections 172(c)(1) and 189(a)(1)(C)).

3. A demonstration (including air quality modeling) that the plan provides for attainment as expeditiously as practicable but no later than the Moderate area attainment date (CAA section 188(c)(1).

4. Plan provisions that require reasonable further progress (RFP) (CAA section 172(c)(2)).

5. Quantitative milestones, which are to be achieved every three years until the area is redesignated to attainment, and which demonstrate RFP toward attainment by the applicable date. The State is required to submit, not later than 90 days after the date on which a milestone applicable to the area occurs, a demonstration that all measures in the approved SIP have been implemented and the milestone has been met. These submissions are referred to as “quantitative milestone reports.” (CAA section 189(c)).

6. Provisions to assure that control requirements applicable to major stationary sources of PM 2.5 also apply to major stationary sources of PM 2.5 precursors, except where the State demonstrates to the EPA's satisfaction that such sources do not contribute significantly to PM 2.5 levels that exceed the standard in the area (CAA section 189(e)).

7. Contingency measures to be implemented if the area fails to meet RFP or fails to attain by the applicable attainment date (CAA section 172(c)(9)).

8. A revision to the Nonattainment New Source Review (NNSR) program to set the applicable “major stationary source” thresholds to 100 tons per year (tpy) (CAA section 302(j)).

Moderate area 2006 24-hour PM 2.5 plans must also satisfy the general requirements applicable to all SIP submissions under section 110 of the CAA, including the requirement to provide necessary assurances that the implementing agencies have adequate personnel, funding, and authority under CAA section 110(a)(2)(E), and the requirements concerning enforcement in CAA section 110(a)(2)(C).

On August 24, 2016 (81 FR 58010), the EPA finalized the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements (“PM 2.5 Requirements Rule”), which partially addressed the 2013 NRDC decision. The final PM 2.5 Requirements Rule details how air agencies can meet the SIP requirements under subparts 1 and 4 that apply to areas designated nonattainment for any PM 2.5 NAAQS, such as: General requirements for attainment plan due dates and attainment demonstrations; provisions for demonstrating RFP; quantitative milestones; contingency measures; NNSR permitting programs; and RACM (including RACT). The statutory attainment planning requirements of subparts 1 and 4 were established to ensure that the following goals of the CAA are met: (i) That states implement measures that provide for attainment of the PM 2.5 NAAQS as expeditiously as practicable; and (ii) that states adopt emissions reduction strategies that will be the most effective at reducing PM 2.5 levels in NAAs.

If an area is reclassified from Moderate to Serious, the area will then be subject to Serious PM 2.5 CAA requirements. Serious area PM 2.5 requirements are the same as those listed above for Moderate areas, except that BACM and BACT are required instead of RACM and RACT, the NNSR permit threshold drops to 70 tons, and the relevant attainment date is the Serious area attainment date (CAA section 188(c)(2). Serious area PM 2.5 plans must also satisfy the Moderate PM 2.5 requirements discussed above, and the general requirements applicable to all SIP submissions under section 110 of the CAA, including the requirement to provide necessary assurances that the implementing agencies have adequate personnel, funding and authority under CAA section 110(a)(2)(E) and the requirements concerning enforcement in CAA section 110(a)(2)(C).

After the November 13, 2009 designation of nonattainment for the 2006 24-hour PM 2.5 NAAQS, Utah developed draft PM 2.5 attainment plans intended to meet the requirements of subpart 1. The EPA submitted written comments dated November 1, 2012, to UDAQ on the draft PM 2.5 SIP, technical support document (TSD), area source rules, and point source rules in Section IX, Part H. 5 Utah submitted revised 2006 24-hour PM 2.5 attainment plans for the Salt Lake City and Provo NAAs on December 14, 2012.

After the court's 2013 decision, Utah amended its attainment plans to address the requirements of subpart 4. On December 2, 2013, and October 30, 2014, the EPA provided comments on Utah's revised draft 2006 24-hour PM 2.5 SIPs, including the TSD and emissions limits in Section IX, Part H. On December 16, 2014, UDAQ withdrew all prior Salt Lake City and Provo 2006 24-hour PM 2.5 Moderate SIP attainment plan submissions and submitted a subpart 1 and subpart 4 Salt Lake City and Provo 2006 24-hour PM 2.5 Moderate SIP. Additionally, the State of Utah submitted various revisions to the UAC Title R307 (Environmental Quality) area source rules in multiple submissions: February 2, 2012; May 9, 2013; June 8, 2013; February 18, 2014; April 17, 2014; May 20, 2014; July 10, 2014; and August 6, 2014. These area source rules were either new or revised to meet RACM/RACT for the Salt Lake City and Provo 2006 24-hour PM 2.5 SIPs. The EPA acted on these submittals, along with the area source rule revisions in the December 16, 2014 submission, on February 25, 2016 (81 FR 9343), October 19, 2016 (81 FR 71988), October 2, 2019 (84 FR 52368), and February 26, 2020 (85 FR 10989).

On January 19, 2017, the State of Utah submitted revisions to their Part H.11, 12, and 13 emission limits section of the Utah 2006 24-hour PM 2.5 SIP and revises R307-110-17. R307-110-17 incorporates by reference (IBR) Section IX, Control Measures for Area and Point Sources, Part H, Emission Limits; which formally incorporates the Salt Lake City and Provo 2006 24-hour PM 2.5 Part H.11, 12, and 13 emission limits into Utah's state regulations. This was undertaken by UDAQ to correlate any overlapping limits between the 2006 24-hour PM 2.5 Part H.11, 12, and 13, to the coarse particulate matter (PM 10 ) Part H.1, 2, 3, and 4.

On May 10, 2017 (82 FR 21711), the EPA published a final rule reclassifying the Salt Lake City and Provo areas to “Serious” nonattainment status, based on the EPA's determination that the areas could not practicably attain the 2006 24-hour PM 2.5 standards by the December 31, 2015 attainment date. This reclassification became effective on June 9, 2017. The reclassification was based on the EPA's evaluation of ambient air quality data from the 2013-2015 period, indicating that it was not practicable for some of the monitoring sites in the Salt Lake City and Provo areas to show PM 2.5 design values at or below the level of the 2006 24-hour PM 2.5 NAAQS by December 31, 2015.

On March 23, 2018, the State of Utah submitted quantitative milestone reports for the Salt Lake City and Provo 2006 24-hour PM 2.5 NAAs, meeting its due date of no later than 90 days after the December 31, 2017 milestone date. On October 24, 2018, the EPA determined that the 2017 quantitative milestone reports for the Salt Lake City and Provo 2006 24-hour PM 2.5 NAAs were adequate. 6

After the Serious reclassification, UDAQ revised certain area source rules in UAC Section R307-200 and R307-300 Series and submitted these revisions on April 19, 2018, May 21, 2020, and July 21, 2020. On February 4, 2019, the State of Utah submitted the BACM/BACT analysis for the Provo Serious 2006 24-hour PM 2.5 NAA, which is based on the emission limits submitted on January 19, 2017 for only Part H.13. On February 15, 2019, Utah submitted the Serious 2006 24-hour PM 2.5 SIP for the Salt Lake City NAA, which included revisions to Utah SIP Part H.11 and 12, and the accompanying BACM/BACT analysis. The February 4, 2019 and February 15, 2019 submissions included BACM/BACT analyses for on-road, off-road, and area source rules; some of these area source rules were revised and others were deemed BACM/BACT without revising. Our detailed discussion on the intricacies of these submissions can be found in Section II.B below of this document.

Applying the Clean Data Policy, 7 on April 10, 2019 (84 FR 14267) and September 27, 2019 (84 FR 51055), the EPA finalized determinations that the obligation to submit any remaining attainment-related SIP revisions arising from classification of the Provo and Salt Lake City areas, respectively, as Moderate NAAs and their subsequent reclassification as Serious NAAs for the 2006 24-hour PM 2.5 NAAQS does not apply for so long as the area continues to attain the 2006 24-hour PM 2.5 NAAQS. 8 The attainment-related SIP revisions that were suspended include the requirements for the State to submit: An attainment demonstration (Moderate and Serious), provisions demonstrating timely implementation of RACM/RACT (Moderate), an RFP plan (Moderate and Serious), quantitative milestones and quantitative milestone reports (Moderate and Serious), and contingency measures (Moderate and Serious). The only remaining SIP elements for EPA action include baseline emission inventories, NNSR, and BACM/BACT. Our review of these remaining elements is in Section II.B below of this document and in our TSD found in the docket.

On October 9, 2020, the State of Utah submitted draft revisions to Kennecott's Power Plant startup/shutdown emission limits in Subsection IX.H.12.i.i.C. in Utah's SIP and revisions to R307-110-17, for the EPA to act on as a parallel process. UDAQ's BACM/BACT analysis submitted on February 15, 2019 for this source did not support these limits; therefore, UDAQ proposed with the October 9, 2020 draft revision to remove these limits. The parallel process is generally described in more detail in Section I.E below.

For a NAA to be redesignated to attainment, the following conditions in section 107(d)(3)(E) of the CAA must be met:

1. We must determine that the area has attained the NAAQS;

2. The applicable implementation plan for the area must be fully approved under section 110(k) of the Act;

3. We must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

4. We must fully approve a maintenance plan for the area as meeting the requirements of CAA section 175A; and

5. The state containing the area must meet all requirements applicable to the area under section 110 and part D of the CAA.

Our September 4, 1992 guidance entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” (referred to in this action as the Calcagni Memorandum) outlines how to assess the adequacy of redesignation requests against the conditions listed above.

On January 13, 2020, the Governor of Utah submitted revisions to the SIP for R307-110-10, maintenance plans for the Salt Lake City (Utah SIP Section IX.A.36) and Provo (Utah SIP Section IX.A.27) areas, and a request that the EPA redesignate the areas to attainment for the 2006 24-hour PM 2.5 NAAQS. R307-110-10 IBRs Section IX, Control Measures for Area and Point Sources, Part A, Fine Particulate Matter; which formally incorporates the Salt Lake City and Provo 2006 24-hour PM 2.5 Maintenance Plans (located within the Utah SIP at Sections IX.A.36 and 27, respectively) into Utah's state regulations. In Section II.C below, we discuss our review of UDAQs maintenance plans and redesignation requests for the Salt Lake City and Provo 2006 24-hour PM 2.5 NAAs.

Vehicle I/M programs help improve air quality by identifying cars and trucks with high emissions and that may need repairs. Owners or operators of vehicles with high emissions are notified to make any repairs so that emissions are within legal limits. On July 17, 1997 (62 FR 38213), and September 14, 2005 (70 FR 54267), the EPA finalized approval of revisions to Utah's SIP Section X, Vehicle Inspection and Maintenance Program for Part B, Davis County, and Part E, Weber County, respectively. In these actions the EPA also approved into the SIP revisions to Utah's regulations at R307-110-32 and R307-110-35. These rules IBR the Utah SIP into state regulations: Rule R307-110-32 IBRs Utah SIP Section X, Vehicle Inspection and Maintenance Program, Part B, Davis County; and Rule R307-110-35 IBRs Utah SIP Section X, Vehicle Inspection and Maintenance Program, Part E, Weber County. 9

Parallel processing refers to a process that utilizes concurrent state and Federal proposed rulemaking actions. Generally, the state submits a copy of the proposed regulation or other revisions to the EPA before conducting its public hearing and completing its public comment process under state law. The EPA reviews this proposed state action and prepares a notice of proposed rulemaking under Federal Law. In some cases, the EPA's notice of proposed rulemaking is published in the Federal Register during the same time frame that the state is holding its public hearing and conducting its public comment process. The state and the EPA then provide for concurrent public comment periods on both the state action and Federal action. If, after completing its public comment process and after the EPA's public comment process has run, the state changes its final submittal from the proposed submittal, the EPA evaluates those changes and decides on whether to publish another notice of proposed rulemaking in light of those changes or to proceed to taking the final action on its proposed action and describe the state's changes in its final rulemaking action. Any final rulemaking action by the EPA will occur only after the final submittal has been adopted by the state and formally provided to the EPA.

In this case, however, the EPA's and Utah's processes have not been perfectly concurrent. The State submitted the draft SIP revisions on October 9, 2020, with a public comment period starting October 1 and going through November 3, 2020, with a public hearing held online at 10am on November 3, 2020. Utah requested that the EPA parallel process these proposed revisions while the State finishes the comment period and public hearing, so as not to delay the 2006 24-hour PM 2.5 redesignation of the Salt Lake City NAA. The State's intention is to submit its final SIP revisions in early January 2021. After Utah submits these formal SIP revisions, the EPA will evaluate the submittal. If the State changes the formal submittal from the proposed submittal, the EPA will evaluate those changes for significance. If the EPA finds any such changes to be significant, then the Agency intends to determine whether to re-propose the actions based on the revised submission or to proceed to take final action on the submittal as changed by the State. Although the EPA was unable to have a concurrent public comment process with the State, Utah's request for parallel processing allows the EPA to begin to take action on the State's proposed submittal in advance of a formal and final submission.

When certain sections of the Utah SIP are amended by the Utah Air Quality Board (UAQB), those sections must be incorporated into the Utah Air Quality Rules. Utah incorporates SIP sections within the state's rule R307-110. These rules are amended as needed to change the effective dates to match the UAQB approval date of various amendments to the Utah SIP. For the Salt Lake City and Provo 2006 24-hour PM 2.5 proposed action, we are acting on R307-110-10, which IBRs Section IX, Control Measures for Area and Point Sources, Part A, Fine Particulate Matter, and thus incorporates the Salt Lake City and Provo 2006 24-hour PM 2.5 maintenance plans into state regulations (located within the Utah SIP at Sections IX.A.36 and 27, respectively). We are also proposing to approve into the SIP R307-110-17, which IBRs Section IX, Control Measures for Area and Point Sources, Part H, Emission Limits, and thus incorporates all the emission limits in Utah SIP Section IX.H.11, 12, and 13, into state regulations. The state's R307-110-32 and R307-110-35 IBR Section X, Vehicle Inspection and Maintenance Program, Part B, Davis County, and Section X, Vehicle Inspection and Maintenance Program, Part E, Weber County, respectively. These two rules incorporate the I/M Programs of Davis and Weber Counties into the state regulations.

Utah Code 41-6a-1642 gives authority to each county in the State to design and manage a vehicle I/M program when necessary to attain or maintain any NAAQS. Section X of the Utah SIP incorporates these county programs. Section X, Part A summarizes I/M requirements that are common among all I/M programs, while Section X, Parts B through F contain the requirements for each county's unique I/M program. Below we discuss the revisions to Utah SIP Section X, Parts B and E, and to the related Rules R307-110-10, R307-110-32, and R307-110-35, along with our evaluation. We discuss the revisions done to Utah SIP Section X, Parts B and E, in greater detail within the TSD. Utah Rule R307-110-17 will be going through the parallel process based on the informal October 9, 2020 UDAQ submission revising Utah SIP Section IX.H.12.i.i.C, which requires a revision to R307-110-17 to incorporate the revisions into the Utah SIP. In Section I.E above, we discuss the process of this type of action.

Section R307-110-10 incorporates amendments to Utah SIP Section IX.A into State regulations, thereby making them effective as a matter of State law. This is a ministerial provision, which only revises the effective date within the rule to December 4, 2019 and does not by itself include any SIP measures.

Section R307-110-17 incorporates the amendments to Utah SIP Section IX, Control Measures for Area and Point Sources, Part H, Emission Limits into State regulations, thereby making them effective as a matter of State law. This is a ministerial provision, which only revises the effective date within the rule to December 2, 2020, and does not by itself include any SIP control measures; however, this revision is being acted on as a parallel process due to revisions to Utah SIP Section IX.H.12.i.i.C. In Section I.E above, we discuss the process of this type of action.

Section R307-110-32 incorporates the amendments to Utah SIP Section X, Vehicle Inspection and Maintenance Program, Part B, Davis County into State rules, thereby making them effective as a matter of State law. This is a ministerial provision, which only revises the effective date within the rule to March 4, 2020 and does not by itself include any control measures.

Section R307-110-35 incorporates the amendments to Utah SIP Section X, Vehicle Inspection and Maintenance Program, Part E, Weber County into State regulations, thereby making them effective as a matter of State law. This is a ministerial provision, which only revises the effective date within the rule to March 4, 2020 and does not by itself include any control measures.

The Davis County motor vehicle I/M program was last approved by the EPA on July 17, 1997 (62 FR 38213). The County has since made numerous improvements, updates and revisions to the I/M program ordinance, while removing unnecessary and obsolete provisions and sections. The version of the Davis County I/M program that we are now proposing to approve supersedes and replaces the July 17, 1997 version. The Davis County I/M Ordinance was enacted and adopted by the Davis County Commission on October 1, 2019 and became effective October 18, 2019, and the Ordinance was adopted into the SIP by the UAQB on March 4, 2020, at Section X, part B. This is the version that was submitted to the EPA and is discussed below.

Section X, Part B of the SIP contains two main components for the Davis County I/M program: (a) Language addressing applicability, a general description of the Davis County I/M program, and the time frame for implementation of the I/M program; and (b) the Davis County Emission Inspection/Maintenance Program, as enacted in Davis County Ordinance 10.12.

a. State Language Addressing the Davis County I/M Program:

Under the heading “1. Applicability” is a description of the 2019 revised Davis County I/M program, and a history of the Salt Lake and Davis county federal ozone NAAQS attainment status and the development of the Davis County I/M program. The section also notes that the Davis County I/M program was included as a control measure in the 2006 24-hour PM 2.5 NAAQS.

Under “2. Summary of Davis County I/M Program,” the state describes various aspects of the revised Davis County I/M program: Network Type, Test Convenience, Subject Fleet, Test Frequency, Station Inspector Audits, Waivers, Test Equipment, and Test Procedures.

Under the heading “3. I/M SIP Implementation,” the State notes that the Davis I/M program will continue to apply until a maintenance plan without an I/M program is approved by the EPA in accordance with Section 175 of the CAA.

b. Revisions to Davis County's “Davis County Vehicle Emissions Inspection/Maintenance Program Ordinance” amend the Ordinance's sections 10.12.020 Definitions, 10.12.030 Purpose, 10.12.040 Jurisdiction of the Division, 10.12.050 Powers and Duties, 10.12.060 Scope, 10.12.070 General Provisions, 10.12.080 Standards and Specifications for Emissions Inspection Analyzers and Span Gases for Equipment, 10.12.090 Requirements of the Vehicle Emissions Inspection/Maintenance Program Stations, 10.12.100 Requirements of the Certified Emissions Testers and/or Repair Technicians, 10.12.110 Official Inspection Procedures, 10.12.130 Emissions Standards for Motor Vehicles, 10.12.140 Certificates of Compliance and Waivers, 10.12.150 Engine Switching, 10.12.160 Right to Appeal, 10.12.170 Recall, 10.12.180 Penalty, 10.12.200 Quality Assurance, 10.12.210 Severability, 10.12.240 Fee Schedule, 10.12.250 Emissions Standards, 10.12.260 Waiver Cut Points, 10.12.270 Passing Versus Waiver Cut Point Comparison, 10.12.280 Penalty Schedule, and 10.12.290 Conflicts.

In addition, the State has submitted revisions to: Appendix A, involving the provisions and requirements for emission inspection analyzer specifications; Appendix B, involving the Two Speed Idle (TSI) emissions inspection procedures; Appendix C, involving the OBDII (On-Board Diagnostics Generation II) inspection procedures; Appendix D, involving the Davis County Diesel I/M Program, which the EPA notes that we are not proposing to act on: and Appendix E, involving compressed natural gas vehicle emissions inspection procedures.

We have evaluated the Governor's May 21, 2020 submittal of the above revisions to the Utah SIP Section X Part B and the revised Davis County Ordinance, with respect to the applicable provisions and requirements in 40 CFR part 51, subpart S “Inspection/Maintenance Program Requirements,” and are proposing approval. Additional information and the EPA's more detailed evaluation of the above materials are found in the accompanying TSD. The entire Davis County Ordinance is in the Docket for this action.

The Weber County motor vehicle I/M program was last approved by the EPA on September 14, 2005 (70 FR 54267). The County has since made numerous improvements, updates and revisions to the I/M program ordinance, while removing unnecessary and obsolete provisions and sections. The version of the Weber County I/M program that we are now proposing to approve supersedes and replaces the prior September 14, 2005 EPA-approved version. The Weber County I/M Regulation was enacted and adopted by the Weber-Morgan Board of Health on September 23, 2019, and the Weber-Morgan Health Department (WMHD) implements the I/M program on behalf of Weber County. The Regulation was adopted into the SIP by the UAQB on March 4, 2020. This is the version that was submitted to the EPA and is discussed below.

Section X, Part E of the Utah SIP addresses the provisions and requirements for the implementation of the motor vehicle I/M program in Weber County, Utah. Section X, Part E of the SIP contains two main components for the Weber County I/M program: (a) Language for Section X Part E that addresses applicability, a general description of the Weber County I/M program, and the time frame for implementation of the I/M program; and (b) the WMHD Motor Vehicle I/M Program Regulation.

a. State Language Addressing the Weber County I/M Program:

Under the heading “1. Applicability” is a description of the 2019 revised Weber County I/M program, a history of the Weber county federal ozone NAAQS attainment status and the development of the Weber County I/M program. The section also notes that the Weber County I/M program was included as a control measure in the 2006 24-hour PM 2.5 NAAQS.

Under the heading “2. Summary of Weber County I/M Program,” the State describes certain aspects of the revised Weber County I/M program involving: Network Type, Test Convenience, Subject Fleet, Test Frequency, Station Inspector Audits, Waivers, Test Equipment, and Test Procedures.

Under the heading “3. I/M SIP Implementation” the State notes that the Weber I/M program will continue to apply until a maintenance plan without an I/M program is approved by the EPA in accordance with Section 175 of the CAA.

b. Revisions to Weber County's “Weber-Morgan Health Department Regulation for Motor Vehicle Inspection and Maintenance Program” amend the regulation's: Section 1 Title and Definitions, Section 2 Purpose, Section 4 Powers and Duties, Section 6 General Provisions, Section 7 Standards and Specifications for Analyzers and Calibration Gases, Section 8 Permit Requirements of the Vehicle Emissions Station, Section 9 Inspection Procedure, Section 10 Certificate of Waiver, Section 12 Certified Emissions Inspection and Repair Technician/Certified Emissions Inspection Only Technician Permit, Section 14 Certificate of Compliance, Certificate of Compliance Numbers, and Certificate of Waiver, Section 15 Adjudicative Proceedings, and Section 18 Effective Date.

In addition, the State has submitted revisions to Appendix A-Analyzer Specifications, Appendix B- Fee Schedule, Appendix C-Motor Vehicle Emissions Inspection and Maintenance Program, Appendix D-Penalty Schedule, Appendix E-OBD IM Test Procedures, Appendix F entitled “Diesel Fueled Vehicle Test Procedure,” which the EPA notes that we are not taking any action on this Appendix, and a new Appendix G entitled “Adjustment Procedures.”

We have evaluated the Governor's May 21, 2020 submittal of the above revisions to the Utah SIP Section X Part E and the revised Weber County Regulation, with respect to the applicable provisions and requirements in 40 CFR part 51, subpart S “Inspection/Maintenance Program Requirements,” and are proposing approval. Additional information and the EPA's more detailed evaluation of the above materials are found in the accompanying TSD. The entire Weber County Regulation is in the Docket for this action.

On August 24, 2016 the EPA finalized the PM 2.5 SIP Requirements Rule, 10 which established regulatory requirements related to the statutory SIP requirements for areas designated nonattainment for the PM 2.5 standards.

As discussed in the PM 2.5 SIP Requirements Rule, sections 189(a), (c), and (e) of the CAA require that Moderate area attainment plans contain the following: (i) An approved permit program for construction of new and modified major stationary sources (CAA section 189(a)(1)(A)); (ii) a demonstration that the plan provides for attainment by no later than the applicable Moderate area attainment date or a demonstration that attainment by that date is impracticable (CAA section 189(a)(1)(B)); (iii) provisions for the implementation of RACM/RACT no later than 4 years after designation (CAA section 189(a)(1)(C)); (iv) quantitative milestones that will be used to evaluate compliance with the requirements to demonstrate RFP (CAA section 189(c)); and (v) evaluation and regulation of PM 2.5 precursors (in general to meet RACM/RACT and other attainment planning requirements, and also as specifically provided for major stationary sources under CAA section 189(e)).

Sections 189(b) and (c) of the CAA include the following requirements for Serious area attainment plan submissions: (i) An attainment demonstration (CAA section 189(b)(1)(A)); (ii) provisions for the implementation of BACM/BACT no later than 4 years after reclassification of the area to Serious (CAA section 189(b)(1)(B)); (iii) quantitative milestones that will be used to evaluate compliance with the requirement to demonstrate RFP (CAA section 189(c)); and (iv) regulation of PM 2.5 precursors (in general to meet attainment and control strategy requirements, and as specifically required for major stationary sources by CAA section 189(e)).

Other subpart 1 requirements for attainment plans not otherwise superseded under subpart 4 also apply to Moderate and Serious areas for the 2006 24-hour PM 2.5 NAAQS, including (i) a description of the expected annual incremental reductions in emission that will demonstrate RFP (CAA section 172(c)(2)); (ii) emissions inventories (CAA section 172(c)(3)); (iii) other control measures (besides RACM/RACT for Moderate areas and BACM/BACT for Serious areas) needed for attainment (CAA section 172(c)(6)); and (iv) contingency measures (CAA section 172(c)(9)).

In connection with the Moderate area SIP for the 2006 24-hour PM 2.5 NAAQS, the EPA has previously acted on a number of Utah SIP revisions related to area sources. In particular, on February 2, 2012; May 9, 2013; June 8, 2013; February 18, 2014; April 17, 2014; May 20, 2014; July 10, 2014; and August 6, 2014, UDAQ submitted either new area source rules or revisions to rules found in UAC Title R307 (Environmental Quality). We acted on these rule revisions on February 25, 2016 (81 FR 9343), October 19, 2016 (81 FR 71988), October 2, 2019 (84 FR 52368) and February 26, 2020 (85 FR 10989).

On December 16, 2014, UDAQ submitted additional Moderate 2006 24-hour PM 2.5 SIP revisions for the Provo and Salt Lake City NAAs. CAA section 110(k)(1)(B) requires the EPA to determine whether a SIP submission is complete within 60 days of receipt. This section also provides that any plan that the EPA has not affirmatively determined to be complete or incomplete will become complete by operation of law six months after the date of submission. The EPA's SIP completeness criteria are in 40 CFR part 51, appendix V. The 2014 2006 24-hour PM 2.5 plan became complete by operation of law on June 22, 2014. Additionally, UDAQ submitted revisions to the Utah SIP Part H.11, 12 and 13 of the Moderate 2006 24-hour PM 2.5 SIPs for the Provo and Salt Lake City NAAs on January 19, 2017, which became complete by operation of law on July 20, 2017.

On May 10, 2017 (82 FR 21711), the EPA determined that the Provo and Salt Lake City NAAs failed to attain the 2006 24-hour PM 2.5 NAAQS by the Moderate attainment date of December 31, 2015. With this determination, the Provo and Salt Lake City NAAs were reclassified as a “Serious” area for the 2006 24-hour PM 2.5 NAAQS, with a new attainment date of December 31, 2019. This reclassification triggered an obligation for Utah to submit a new, Serious area attainment plan including the CAA elements listed above. Additionally, CAA section 189(b)(1) requires that “in addition” to the attainment plan requirements specific to Serious areas, states must also meet all Moderate area attainment plan requirements. The EPA interprets the statutory language of CAA section 189(b)(1) to require states with areas that are reclassified to Serious to meet Moderate area attainment plan requirements, including all areas that the EPA reclassifies through rulemaking under its discretionary authority, even if that occurs before the area has met all of its Moderate area attainment plan requirements. The following section describes the EPA's final actions in this rule regarding Serious area attainment plan requirements in greater detail.

On April 10, 2019 (84 FR 14267) and September 27, 2019 (84 FR 51055), the EPA finalized clean data determinations (CDD) for the Provo and Salt Lake City NAAs, respectively. As provided at 40 CFR 51.1015(a) in the PM 2.5 SIP Requirements Rule, this determination by the EPA that the Provo and Salt Lake City Moderate 2006 24-hour PM 2.5 NAAs suspended the requirements for the State to submit an attainment demonstration, provisions demonstrating timely implementation of RACM/RACT, a RFP plan, quantitative milestones and quantitative milestone reports, and contingency measures. However, based on the EPA's longstanding policy, the BACM/BACT requirement of CAA section 189(b)(1)(B) is independent of attainment. Thus, the CDD did not suspend the obligation for UDAQ to submit any applicable outstanding BACM/BACT requirements or other requirements that are independent of attainment (NNSR and base-year emissions inventories).

On February 15, 2019, UDAQ submitted the Serious 2006 24-hour PM 2.5 SIP for the Salt Lake City NAA. Under CAA section 110(k)(1)(B), the Salt Lake City Serious 2006 24-hour PM 2.5 SIP became complete by operation of law on August 15, 2019. Additionally, UDAQ submitted BACM/BACT analyses on February 4, 2019 for the Provo NAA. The revisions to area source rules for the NAAs were submitted on April 19, 2018, May 21, 2020 and July 21, 2020, and revisions to the Utah SIP Section IX.H.11, 12 and 13 for the NAAs were submitted on December 16, 2014, January 19, 2017 and February 15, 2019. The revisions submitted on January 19, 2017 and February 15, 2019, for Utah SIP Section IX.H.11, 12 and 13, supersede the December 16, 2014 submission; therefore, we are not acting on the December 16, 2014 revisions, but are fully acting on Utah SIP Section IX.H.13 from the January 19, 2017 submission and Utah SIP Section IX.H.11 and 12 from the February 15, 2019 submission. Any reference to the December 16, 2014 submission for Utah SIP Sections IX.H.11, 12 and 13, and any reference to the January 19, 2017 submittal for Utah SIP Section IX.H.11 and 12, are for informational purposes only. Additionally, on October 9, 2020, UDAQ submitted draft revisions to Kennecott's Power Plant in Utah SIP Section IX.H.12.i.i.C and the accompanying R307-110-17 revisions for the EPA to parallel process.

We are acting on these remaining Serious 2006 24-hour PM 2.5 SIP elements for the Salt Lake City and Provo NAAs, that were not suspended with the CDDs, to allow for our action on the 2006 24-hour PM 2.5 redesignation requests discussed in Section II.C below of this document.

CAA section 172(c)(3) requires that each SIP include a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in the NAAs. This base-year emissions inventory should provide a state's best estimate of actual emissions from all sources of the relevant pollutants in the area, including all emissions that contribute to the formation of a particular NAAQS pollutant. For the 2006 24-hour PM 2.5 NAAQS, the base-year inventory must include direct PM 2.5 emissions, separately reported filterable and condensable PM 2.5 emissions, and emissions of all chemical precursors to the formation of secondary PM 2.5 : Nitrogen oxides (NO X ), sulfur dioxide (SO 2 ), volatile organic compounds (VOC), and ammonia (NH 3 ). 11

The most current base year for emissions inventories for the Provo and Salt Lake City NAAs was for 2017, which was made available to the public for comment (and a public hearing if requested) in the January 13, 2020 PM 2.5 maintenance plans/redesignation requests submittal. The base-year inventories are based on the most current and accurate information available to UDAQ at the time of the submittal. The 2017 base-year inventories comprehensively address all source categories in the Provo and Salt Lake City NAAs and were developed consistent with the EPA's inventory guidance.

In Section II.C.4.a below, the EPA provides a detailed analysis of the 2017 base-year emissions inventories for the Provo and Salt Lake City NAAs, which were submitted for the 2006 24-hour PM 2.5 maintenance plans. Direct PM 2.5 and all PM 2.5 precursors are included in the 2017 base-year emissions inventories, and filterable and condensible direct PM 2.5 emissions are identified separately. For these reasons, and with the EPA's detailed analysis in Section II.C.4.a below, the EPA is proposing to approve the 2017 base-year emissions inventories for the Provo and Salt Lake City NAAs as meeting the requirements of CAA section 172(c)(3), 40 CFR 51.1008(a)(1) and 40 CFR 51.1008(b)(1).

CAA section 172(c)(5) requires preconstruction and operating permits for new major stationary sources and major modifications locating in NAAs. Section 173 of the CAA outlines the minimum statutory requirements for a state's NNSR permit program and serves as the basis for the EPA's NNSR regulations for PM 2.5 as promulgated in the 2008 PM 2.5 NSR Rule published at 73 FR 28321, May 16, 2008. 12 The 2016 PM 2.5 Regulatory Rule amended the definitions of (1) regulated NSR pollutant with regard to PM 2.5 precursors, (2) major stationary source with regard to major sources locating in PM 2.5 NAAs classified as Moderate and Serious, and (3) significant with regard to emissions of PM 2.5 precursors. For Moderate 2006 24-hour PM 2.5 SIPs, CAA section 189(a)(1)(A) of subpart 4 applies, which requires states to include in their implementation plan a permit program addressing major stationary sources of the 2006 24-hour PM 2.5 NAAQS that meets the requirements under CAA section 173 of subpart 1. For a Serious 2006 24-hour PM 2.5 SIP, CAA section 189(b)(3) of subpart 4 applies, which requires that for any Serious Area the terms “major source” and “major stationary source” include any stationary source or group of stationary sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 70 tpy of PM 2.5 .

An approvable NNSR program in a state's implementation plan must, at a minimum, meet the applicable program requirements set forth in the federal NNSR provisions at 40 CFR 51.165, which for PM 2.5 have been based on changes to the section made by the 2008 PM 2.5 NSR Rule. 13 States with designated NAAs for a particular pollutant are required to adopt regulations consistent with those applicable plan requirements, including any subsequent rule changes that the EPA may make, and submit them to the EPA for approval as part of their SIP.

The Provo and Salt Lake City NAAs were classified as a Moderate NAA for the 2006 24-hour PM 2.5 NAAQS on November 13, 2009 (74 FR 58688). On May 10, 2017 (82 FR 21711), the Provo and Salt Lake City areas were reclassified from Moderate to Serious 2006 24-hour PM 2.5 NAAs. The major source permitting threshold for a Moderate 2006 24-hour PM 2.5 NAA is 100 tpy of direct PM 2.5 or any PM 2.5 precursor, and 70 tpy for a Serious 2006 24-hour PM 2.5 NAA.

On July 25, 2019 (84 FR 35831), the EPA approved revisions to UAC R307-403 (Permits: New and Modified Sources in Nonattainment Areas and Maintenance Areas), which satisfies the outstanding NNSR requirement for the Provo and Salt Lake City Moderate and Serious 2006 24-hour PM 2.5 NAAs.

For any Serious 2006 24-hour PM 2.5 NAA, section 189(b)(1)(B) of the Act requires that a state submit provisions to assure that BACM/BACT for the control of PM 2.5 and PM 2.5 precursors shall be implemented no later than four years after the date the area is reclassified as a Serious area. The EPA defines BACM (including BACT) as, among other things, the maximum degree of emissions reduction achievable for a source or source category, which is determined on a case-by-case basis considering energy, economic and environmental impacts, and other costs. 14 We generally consider BACM a control level that goes beyond existing RACM-level controls, for example by expanding the use of RACM controls or by requiring preventative measures instead of remediation. 15 Indeed, as implementation of BACM and BACT is required when a Moderate NAA is reclassified as Serious due to its inability to attain the NAAQS through implementation of “reasonable” measures, it is logical that “best” control measures should represent a more stringent and potentially more costly level of control. 16 The level of stringency generally refers to the overall level of emissions reductions of a control measure or technology, or of such measures and technologies combined.

The PM 2.5 SIP Requirements Rule explains that BACM/BACT are generally independent requirements, to be determined without regard to the specific attainment analysis ( i.e., attainment demonstration) for the area. 17 The EPA found it reasonable to interpret the statute as requiring a different analysis for determining BACM/BACT, i.e., that while RACM emphasizes the attainment needs of the area, BACM has a greater emphasis on identifying measures that are feasible to implement. The Addendum noted that the test for BACM puts a “greater emphasis on the merits of the measure or technology alone,” rather than on “flexibility in considering other factors,” in contrast to the approach for RACM/RACT. 18

Section 189(b)(1)(B) of the Act allows states, in appropriate circumstances, to delay implementation of BACM until four years after reclassification. Because the EPA reclassified the Provo and Salt Lake City areas as Serious NAAs for the 2006 24-hour PM 2.5 NAAQS effective June 9, 2017 (82 FR 21711; May 10, 2017), the date four years after reclassification is June 9, 2021. In this case, however, all BACM for direct PM 2.5 and PM 2.5 precursors in the Provo and Salt Lake City areas must be implemented no later than December 31, 2019, which is the outermost statutory attainment date for the Provo and Salt Lake City areas under section 188(c)(2). 19

Under the PM 2.5 SIP Requirements Rule, control measures that can be implemented in whole or in part by the end of the fourth year after an area's reclassification to Serious are considered BACM, and control measures that can only be implemented after this period but before the attainment date are considered “additional feasible measures.”  20 The EPA has defined “additional feasible measures” as “those measures and technologies that otherwise meet the criteria for BACM/BACT but that can only be implemented in whole or in part beginning 4 years after reclassification of an area, but no later than the statutory attainment date of the area.”  21 Given that the statutory attainment date is less than three years from the effective date of the reclassification of the Provo and Salt Lake City areas, additional feasible measures are not required in this case.

The Addendum and the PM 2.5 SIP Requirements Rule explain that the BACM/BACT selection process for implementation of the 2006 24-hour PM 2.5 NAAQS is designed to take into account the local facts and circumstances and the nature of the air pollution problem in a given NAA. The following steps are used in determining BACM/BACT: (1) Develop a comprehensive emission inventory of the sources of directly emitted PM 2.5 and PM 2.5 precursors; (2) Identify existing and potential control measures for the sources in the inventory; (3) Evaluate the technological feasibility of potential control measures; (4) Evaluate the economic feasibility of potential control measures; and (5) Determine the earliest date by which a control measure or technology can be implemented in whole or in part. 22

Additionally, the EPA believes that BACT or lowest achievable emission rate (LAER) provisions for new sources (as distinct from BACT for existing sources), or best available retrofit technology (BART) for existing sources, could potentially quality as BACM or BACT for purposes of meeting the Serious area attainment plan requirements. 23 However, as discussed further in the PM 2.5 SIP Requirements Rule, the EPA does not believe it is appropriate for a state to assume that just because a certain control technology was determined to meet BACT, LAER or BART criteria for a new source sometime in the past, that such a control will also automatically meet the criteria for BACM or BACT or additional feasible measures for attainment planning purposes, because the regulated pollutant or source applicability may differ and the analyses may be conducted years apart. Thus, a state may not simply rely on prior BACT, LAER or BART analyses for the purposes of showing that a source has also met BACT for the relevant 2006 24-hour PM 2.5 NAAQS. Rather, the EPA expects that in Step 2 (discussed above) of the BACM/BACT determination process, the state would identify such measures as “existing measures” that should be further evaluated as potential BACM or BACT, or additional feasible measures. At the same time, the EPA notes that the presence of previously installed control technology, and the technical and economic considerations that would be associated with upgrading to a measure that achieves greater reductions, is something that should be considered in the assessments of technological and economic feasibility of the newer measure. 24

Once these analyses are complete, a state must use this information to develop enforceable control measures and submit them to the EPA for evaluation under CAA section 110. We use these steps as guidelines in our evaluation of the BACM measures and related analyses in the Provo and Salt Lake City 2006 24-hour PM 2.5 Serious SIP.

The composition of PM 2.5 is complex and highly variable due in part to the large contribution of secondary PM 2.5 to total fine particle mass in most locations, and to the complexity of secondary particle formation processes. A large number of possible chemical reactions, often non-linear in nature, can convert gaseous SO 2 , NO X , VOC, and NH 3 to PM 2.5 , making them precursors to PM 2.5 . 25 Formation of secondary PM 2.5 may also depend on atmospheric conditions, including solar radiation, temperature, and relative humidity, and the interactions of precursors with preexisting particles and with cloud or fog droplets. 26

As explained in the PM 2.5 SIP Requirements Rule, the Act requires that the state evaluate all PM 2.5 precursors for regulation unless, for any given PM 2.5 precursor, it demonstrates to the Administrator's satisfaction that the precursor does not contribute significantly to 2006 24-hour PM 2.5 levels that exceed the NAAQS in the NAA. 27 The CAA does not define the term “precursor” for purposes of PM. The statutory definition of “air pollutant,” however, provides that the term “includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term `air pollutant' is used.”  28 The EPA has identified SO 2 , NO X , VOC, and NH 3 as precursors to the formation of PM 2.5 . Accordingly, the BACM/BACT requirements of subpart 4 apply to emissions of all four precursor pollutants and direct PM 2.5 from all types of stationary, area, and mobile sources, except as otherwise provided in the Act ( e.g., CAA section 189(e)).

Section 189(e)  29 of the Act requires that the control requirements for major stationary sources of PM 2.5 also apply to major stationary sources of PM 2.5 precursors, except where the Administrator determines that such sources do not contribute significantly to PM 2.5 levels that exceed the standard in the area. Although section 189(e) explicitly addresses only major stationary sources, the EPA interprets the Act as authorizing it also to determine, under appropriate circumstances, that regulation of specific PM 2.5 precursors from other source categories in a given NAA is not necessary. 30

The PM 2.5 SIP Requirements Rule recognizes that the treatment of PM 2.5 precursors is important in developing a PM 2.5 plan. 31 The rule provides flexibility for areas where a particular PM 2.5 precursor or precursors may not contribute significantly to PM 2.5 levels that exceed the NAAQS. The rule provides for optional precursor demonstrations that a state may submit to the EPA to establish that sources of particular precursors need not be regulated for purposes of attainment planning or in an NNSR permitting program for a specific NAA.

The February 4, 2019 and February 15, 2019, submissions for the Provo and Salt Lake City discusses the five primary pollutants that contribute to the emissions in the NAAs ( i.e., NO X, SO 2 , VOC, NH 3 , and directly emitted PM 2.5 ). The majority of ambient PM 2.5 collected during a typical cold-pool episode of elevated concentration is secondary particulate matter, generated from gaseous precursor emissions. The results of speciation studies led UDAQ to the conclusion that the exceedances of the 2006 24-hour PM 2.5 NAAQS were a result of the increased portion of the secondary PM 2.5 , mainly ammonium nitrate, that was chemically formed in the air and not primary PM 2.5 emitted directly into the troposphere. 32 Because of the major role that precursors play within the Provo and Salt Lake City NAAs, UDAQ did not include any precursor demonstration. Thus, the requirement to ensure the implementation of BACM/BACT applies to direct PM 2.5 and each of the four PM 2.5 precursors listed above.

Based on the information provided in the Provo and Salt Lake City submissions and other information available to the EPA, we agree with UDAQ's conclusion that all four chemical precursors, including direct PM 2.5 , must be regulated for purposes of attaining and maintaining the 2006 24-hour PM 2.5 NAAQS in the Provo and Salt Lake City NAAs.

The first step in determining BACM is to develop a detailed emissions inventory of the sources of direct PM 2.5 and PM 2.5 precursors that can be used with modeling to determine the effects of these sources on ambient PM 2.5 levels. As discussed above in Section II.B.1 of this proposed rule, Chapter 4 (Emission Inventory Data) of the Salt Lake City February 15, 2019 submission and the General Inventory section of the Provo, February 4, 2019 submission, contain the planning inventories for directly emitted PM 2.5 and for all PM 2.5 precursors (NO X , SO 2 , VOC, and NH 3 ) for the Salt Lake City and Provo NAAs, along with supporting documentation to support these inventories. Based on these inventories, four general categories were established: Industrial point sources, on-road mobile sources, off-road mobile sources, and area sources. Area sources represent smaller, more numerous point sources, residential activities such as home heating, and some biogenic emissions.

Based on this identification of stationary, area, and mobile sources of direct PM 2.5 , NO X , VOC, SO 2 , and NH 3 in the Provo and Salt Lake City areas, we conclude that the February 4, 2019 and February 15, 2019 submissions, respectively, appropriately identify all emission sources and source categories that must be subject to evaluation for potential control measures consistent with the requirements of subpart 4.

As part of its process for identifying candidate BACM/BACT and considering the technical and economic feasibility of additional control measures, UDAQ reviewed the EPA's guidance documents on BACM, guidance documents on control measures for direct PM 2.5 , NO X , VOC, NH 3 , and SO 2 emissions sources, 33 and control measures implemented in other PM 2.5 NAAs in other states. UDAQ's evaluations of potential BACM/BACT for each source category identified above are found in “Section 8. Control Strategies” in the February 4, 2019 Provo submission and in the TSD supporting the February 15, 2019 Salt Lake City submission. In the following sections, we review key components of UDAQ's demonstrations concerning BACM/BACT for the identified sources of direct PM 2.5 , NO X , VOC, SO 2 , and NH 3 emissions in the Provo and Salt Lake City NAAs. We provide a more detailed evaluation of our review of UDAQ's regulations in our TSD, which is in the docket.

The UDAQ's BACM/BACT process and control measure evaluations are described in detail in the February 4, 2019 submission, “Section 8. Control Strategies” for the Provo NAA and in the State's February 15, 2019 TSD for the Salt Lake City NAA. For each identified source category, UDAQ identified its adopted control measures and potential additional control measures based on measures implemented in other areas, measures identified in EPA regulations or guidance ( e.g., in control technique guidelines (CTGs), alternative control technique documents (ACTs), new sources performance standards (NSPSs), or in the EPA's “Cost Analysis Models/Tools for Air Pollution Regulations”), or measures identified in prior EPA rulemaking documents ( e.g., recommendations in SIP actions). 34 UDAQ evaluated these potential additional control measures to determine whether implementation of the measures would be technologically and economically feasible in the Provo and Salt Lake City areas.

On April 19, 2018, May 21, 2020 and July 21, 2020, UDAQ submitted revisions and new rules to its area source rules R307-208, Outdoor Wood Boilers; R307-230, NO X Emission Limits for Natural Gas-Fired Water Heaters; R307-304, Solvent Cleaning; R307-335, Degreasing; R307-343, Emissions Standards for Wood Furniture Manufacturing Operations; R307-344, Paper, Film, & Foil Coating; R307-345, Fabric & Vinyl Coating; R307-346, Metal Furniture Surface Coating; R307-347, Large Appliance Surface Coating; R307-348, Magnet Wire Coating; R307-349, Flat Wood Panel Coating; R307-350, Miscellaneous Metal Parts & Products Coating; R307-351, Graphic Arts; R307-352, Metal Containers, Closure & Coating; R307-353, Plastic Parts Coating; R307-354, Auto Body Refinishing; and R307-355, Control of Emissions from Aerospace Manufacture & Rework Facilities. Additionally, UDAQ provided BACM analysis for area source rules that were not revised, which include: R307-302, Solid Fuel Burning Devices; R307-303, Commercial Cooking; R307-307, Road Salting & Sanding; R307-309, Nonattainment and Maintenance Areas for PM 10 and PM 2.5 : Fugitive Emissions and Fugitive Dust; R307-312, Aggregate Processing Operations; R307-328, Gasoline Transfer and Storage; R307-341, Cutback Asphalt; R307-342, Adhesive and Sealants; R307-356, Appliance Pilot Light; R307-357, Consumer Products; and R307-361, Architectural Coatings. Our detailed analysis of these area source rule revisions submitted on April 19, 2018, May 21, 2020, and July 21, 2020, and the BACM analyses for these area sources submitted on February 4, 2019 and February 15, 2019 for the Provo and Salt Lake City Serious 2006 24-hour PM 2.5 NAAs can be found in our TSD in the docket.

On February 15, 2019, Utah submitted revisions to SIP Section IX.H.11 (General Requirements: Control Measures for Area and Point Sources, Emission Limits and Operating Practices, PM 2.5 ). This section of Utah's SIP applies to all sources addressed in Utah SIP sections IX.H.12 and 13, except as otherwise outlined in individual conditions in Sections IX.H.12 and 13. Our detailed analysis of the revisions submitted on February 15, 2019, for the Utah SIP Section IX.H.11, along with our analysis of UDAQs BACM/BACT analyses specific to Utah SIP Section IX.H.11, submitted on February 4, 2019 and February 15, 2019 can be found in our TSD in the docket.

On February 15, 2019, Utah submitted revisions to SIP Section IX.H.12 (Source-Specific Emission Limitations in Salt Lake City—UT PM 2.5 Nonattainment Area), which sets emission limits and control measures for major stationary sources in the Salt Lake City 2006 24-hour PM 2.5 Serious NAA. These sources, which fall above the 70 tpy threshold for Serious 2006 24-hour PM 2.5 major sources  35 defined in Utah R307-403 (Permits: New and Modified Sources in Nonattainment Areas and Maintenance Areas), include: (1) ATK Launch Systems Inc. Promontory; (2) Big West Oil Refinery; (3) Chemical Lime Company (Lhoist North America); (4) Chevron Products Company—Salt Lake Refinery; (5) Compass Minerals Ogden Inc.; (6) Hexel Corporation: Salt Lake Operations; (7) Holly Corporation: Holly Refining & Marketing Company (Holly Refinery); (8) Kennecott Utah Copper (KUC): Mine; (9) Kennecott Utah Copper (KUC): Power Plant; (10) Kennecott Utah Copper (KUC): Smelter and Refinery; (11) Nucor Steel Mills; (12) PacifiCorp Energy: Gadsby Power Plant; (13) Tesoro Refining and Marketing Company: Salt Lake City Refinery; (14) The Proctor & Gamble Paper Products Company; (15) Utah Municipal Power Association: West Valley Power Plant; (16) University of Utah: University of Utah Facilities; and (17) Hill Air Force Base. On February 15, 2019, UDAQ submitted the BACM/BACT analyses for each of these 17 sources. All other sources fall below the 70 tpy threshold and are covered in the multiple area source rules discussed above. Our detailed analysis of the revisions submitted on February 15, 2019, for the Utah SIP Section IX.H.12, along with our analysis of UDAQs BACM/BACT analyses submitted on February 15, 2019, specific to Utah SIP Section IX.H.12, can be found in our TSD in the docket.

Additionally, UDAQ submitted draft revisions on October 9, 2020, specific to Utah SIP Section IX.H.12.i.i.C (Kennecott Power Plant), which the state has asked the EPA to act on through parallel processing. This draft revision removes the startup/shutdown limits for the Kennecott Power Plant that was not supported within the BACM/BACT analysis submitted on February 15, 2019. The detailed analysis of our parallel process on the October 9, 2020, submission of draft revisions to Utah SIP Section IX.H.12.i.i.C (Kennecott Power Plant), can be found in our TSD in the docket, and our detailed discussion of how parallel processing works can be found in Section I.E above.

On January 19, 2017, Utah submitted revisions to SIP Section IX.H.13 (Source-Specific Emission Limitations in Provo—UT PM 2.5 Nonattainment Area), which sets emission limits and control measures for major stationary sources in the Provo 2006 24-hour PM 2.5 Serious NAA. The sources in Section IX.H.13 include: (1) Brigham Young University: Main Campus; (2) Geneva Nitrogen Inc.: Geneva Nitrogen Plant; (3) McWane Ductile—Utah; (4) PacifiCorp Energy: Lake Side Power Plant; (5) Payson City Corporation: Payson City Power; (6) Provo City Power: Power Plant; and (7) Springville City Corporation: Whitehead Power Plant. UDAQ submitted BACM/BACT analyses for only two of these sources, McWane Ductile—Utah and PacifiCorp Energy: Lake Side Power Plant. The other five sources listed above fall below the 70 tpy threshold for Serious 2006 24-hour PM 2.5 major stationary sources, 36 which is defined in Utah R307-403 (Permits: New and Modified Sources in Nonattainment Areas and Maintenance Areas) rule. These remaining five sources (Brigham Young University, Geneva Nitrogen Plant, Payson City Power, Provo City Power, and Whitehead Power Plant) were either shut down (Geneva Nitrogen Plant) or have reduced their emissions to be minor sources (Brigham Young University, Payson City Power, Provo City Power, and Whitehead Power Plant). UDAQ uses Utah SIP Section IX.H. only for major stationary source emission limits or control measures; therefore, UDAQ has requested that EPA not act on the Utah SIP Section IX.H.13 portions for these facilities because the limits/measures are out of date and will be removed in future rulemakings. Since we have never approved these limits or sources into Utah SIP Section IX.H.13, and this section was only created in the December 16, 2014 submittal, UDAQ does not need to complete a 110(l) demonstration. We will only be acting on the McWane Ductile—Utah and PacifiCorp Energy: Lake Side Power Plant sections of Utah SIP Section IX.H.13, and on these sources' BACM/BACT determinations submitted by UDAQ on February 4, 2019. Our detailed analysis of the revisions submitted on January 19, 2017, along with our analysis of UDAQ's BACM/BACT analyses submitted on February 4, 2019, can be found in our TSD in the docket.

As to the other facilities originally submitted within Utah SIP Section IX.H.13, no additional discussion or action is necessary for the Geneva Nitrogen Plant due to its shutdown. The BACM/BACT analyses for the other facilities (Brigham Young University, Payson City Power, Provo City Power, and the Whitehead Power Plant) are now included in the individual BACM/BACT analyses for each area source rule. No additional discussion is needed as to these limits in Utah SIP Section IX.H.13, which as noted above are outdated, or on these facilities as individual sources. Our detailed analysis of the area source rules, along with our analysis of UDAQ's BACM/BACT analyses submitted on February 4, 2019 and February 15, 2019, can be found in our TSD in the docket.

Additionally, on February 4, 2019 and February 15, 2019, UDAQ submitted BACM/BACT analyses for on-road and non-road mobile sources for the Provo and Salt Lake City Serious 2006 24-hour PM 2.5 NAAs, respectively. Our detailed analysis of these analyses can be found in our TSD in the docket.

We have reviewed UDAQ's determination in the February 4, 2019 and February 15, 2019 submissions that the major stationary and area source control measures represent BACM/BACT for direct PM 2.5 and PM 2.5 precursors within the Provo and Salt Lake City NAAs, respectively. In our review, we also considered our previous evaluations of UDAQ's rules in connection with our approval of revisions for Utah's R307 area source rules and RACM demonstration for the Provo and Salt Lake City Moderate 2006 24-hour PM 2.5 SIPs that were acted on. 37 Based on this review, we believe that UDAQ's area source rules and the Utah SIP Part H emission limits provide for the implementation of BACM/BACT for major stationary sources and area sources of direct PM 2.5 and PM 2.5 precursors.

With respect to mobile sources, we believe that the programs developed and administered by UDAQ, along with the identified Federal requirements, provide for the implementation of BACM/BACT for direct PM 2.5 and PM 2.5 precursors in the Provo and Salt Lake City NAAs.

For these reasons we propose to approve the revisions submitted on January 19, 2017, April 19, 2018, February 4, 2019, February 15, 2019, May 21, 2020 and July 21, 2020. We also propose to find that these submissions provide for the implementation of BACM/BACT for all sources of direct PM 2.5 and PM 2.5 precursors as expeditiously as practicable, for purposes of the 2006 24-hour PM 2.5 NAAQS in the Provo and Salt Lake City areas, in accordance with the requirements of CAA section 189(b)(1)(B) and 40 CFR 51.1010. We are also proposing to approve, through parallel processing, the October 9, 2020 draft submission of revisions to Utah SIP Section IX.H.12.i.i.C to remove the startup/shutdown limits that were not supported in the BACM/BACT determination of the Kennecott Power Plant. Additionally, we are proposing to approve the area source rule revisions submitted on April 19, 2018, May 21, 2020 and July 21, 2020, and to approve the BACM/BACT analyses submitted on February 4, 2019 and February 15, 2019. We are also proposing to approve the revisions to Utah SIP Sections IX.H.11 and 12, submitted on February 15, 2019; revisions to Utah SIP Section IX.H.13, submitted on January 19, 2017; and draft revisions submitted on October 9, 2020, for the Provo and Salt Lake City Serious 2006 24-hour PM 2.5 NAAs. Our detailed analyses can be found in the EPA TSD in the docket.

For a NAA to be redesignated to attainment, the following conditions in section 107(d)(3)(E) of the CAA must be met: (1) We must determine that the area has attained the NAAQS; (2) The applicable implementation plan for the area must be fully approved under section 110(k) of the Act; (3) We must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) We must fully approve a maintenance plan for the area as meeting the requirements of CAA section 175A; and (5) The state containing such area must meet all requirements applicable to the area under section 110 and part D of the CAA.

The September 4, 1992 Calcagni Memorandum outlines how to assess the adequacy of redesignation requests against the conditions listed above. On January 13, 2020, the Governor of Utah submitted revisions to the SIP for R307-110-10, submitted maintenance plans for the Salt Lake City and Provo areas (located within Utah SIP Sections IX.A.36 and 27, respectively), and requested that the EPA redesignate the area to attainment for 2006 24-hour PM 2.5 .

The sections below discuss how Utah's redesignation requests and maintenance plans meet the requirements of the Act for redesignation of the Provo and Salt Lake City areas to attainment for the 2006 24-hour PM 2.5 NAAQS.

To redesignate an area from nonattainment to attainment, the EPA must determine that the area has attained the applicable NAAQS. See CAA section 107(d)(3)(E)(i). A state must demonstrate that an area has attained the 2006 24-hour PM 2.5 NAAQS through submittal of ambient air quality data from an ambient air monitoring network representing maximum PM 2.5 concentrations. The data, which must be quality assured, quality-controlled, and certified in the EPA's Air Quality System (AQS), must show that the most recent three years (2017-2019) of valid PM 2.5 98th percentile mass concentrations are below the 2006 PM 2.5 24-hour NAAQS (35 µg/m 3 ), pursuant to 40 CFR 50.13. In making this showing, three consecutive years of complete air quality data must be used.

Between 2017 and 2019, Utah operated two and five PM 2.5 monitors in the Provo and Salt Lake City NAAs, respectively. The EPA reviewed the PM 2.5 ambient air monitoring data from the Provo monitors, Lindon (AQS site 49-049-4001) and Spanish Fork (AQS site 49-049-5010), 38 and from the Salt Lake City monitors, Bountiful (AQS site 49-011-0004), Rose Park (AQS site 49-035-3010), Hawthorn (AQS site 49-035-3006), Herriman #3 (AQS site 49-035-3013), and Erda (AQS site 49-045-0004). 39

As part of the redesignation requests for the Provo and Salt Lake City NAAs, UDAQ submitted ambient air quality data from the monitoring sites, which had been quality-assured and placed in AQS on a quarterly basis. The 98th percentile 2017-2019 design values for the monitors in the Provo and Salt Lake City NAAs are found in Table 1 below, and support the conclusion that the areas have attained the 2006 24-hour PM 2.5 NAAQS.